Who May be Granted a Patent?

Date Published

The applicant is taken to be the nominated person for the grant of the patent (reg 3.1A).  Whilst any person, legal or otherwise, may apply for a patent, only certain persons may be granted a patent (sec 15).  Consequently, at acceptance, the applicant must be a person eligible to be granted a patent.

The word "person" in sec 15 means a legal person and includes a body politic (e.g. Commonwealth of Australia, French Republic) and a body corporate (e.g. a company incorporated under the laws of the State of Victoria), as well as a natural person (sec 2C of the Acts Interpretation Act 1901).

If an applicant dies before a patent is granted, the applicant's legal representative may proceed with the application (see Death of Applicant).

Note: A patent is not invalid merely because it was granted to a person who is not entitled or not granted to a person who is entitled (sec 22A).

Legal Persons

An objection should not be taken that a person is not a legal person, except in the clearest of cases.  A non-exhaustive list of some types of legal persons is given in 2.6 Annex A – Examples of Legal Persons.

Historically, the status of some bodies has been held to be legally uncertain. These are foreign bodies whose status under their particular domestic law is not strictly comparable with that of Australian companies, but which under the laws of the foreign country in question:

  • can acquire title to land and property in their own name and that title is unaffected by changes in the membership of the foreign body;
  • a judgement against them cannot be enforced against their members, nor can a judgement against a member be enforced against the foreign bodies; and

  • a conveyance is required for a transfer of property from them to one of their members.

No objection should be taken in relation to the status of such bodies as legal persons.  A non-exhaustive list of some types of these bodies is given in 2.6 Annex B - Examples of Organisations of Uncertain Status as Legal Persons.

Trusts, Firms and Partnerships

Trusts are not a legal person and therefore cannot be granted a patent. A trust can usually be identified by a name, e.g. "The AB Family Trust". However, companies may have the word "Trust" or "Trustee" as a part of their name, e.g. Perpetual Trustee Australia Ltd. This does not detract from their status as a legal person. Where there is doubt as to whether a person is a trust, the matter should be discussed with a supervising examiner prior to taking any objection.

Where the applicant is stated to be the trustee of another person, e.g. “X as a trustee for Y”, COG will record this information without reference to the “as a trustee for Y”, as there is no provision for a person to qualify their entitlement to a patent. This will usually be done at filing or national phase entry.  Where the applicant information has not been corrected, examiners should contact COG.

Firms, partnerships and business names are also not legal persons and therefore cannot be granted a patent. These bodies are usually identified by the absence of the words Co. or Pty Ltd in their name, e.g. Davies & Collison. A partnership can also be indicated by the qualification "trading as", e.g. A and B, trading as C. (In this regard, see R v The Commissioner of Patents; Ex parte Weiss 61 CLR 240 at 251).

Any uncertainties as to the status of a trust, firm or partnership as a legal person can be resolved by recording as the applicant the trustee of the trust (without reference to the trust), or the personal names of the partners of the firm or partnership (without reference to the name of the firm or partnership).

A body corporate in liquidation may be granted a patent. The liquidator is empowered to do anything required or permitted by the Act in the name of and on behalf of the body corporate, but the property still remains in the name of company until distributed to creditors.

Persons Under Regulation 22.17

An application for a patent may be made, and a patent granted, in the name of an incapable person, i.e. a person who by reason of infancy, or physical or mental disability, is incapable of doing anything required or permitted by the Act (reg 22.17).

Thus, an infant or minor (i.e. a person under the age of 18 years) may apply for and be granted a patent. Under the Act, there is no prohibition on the granting of a patent to an infant or minor, and at common law an infant or minor has always been capable of owning personal property, personal chattels and (in Australia) real property. Moreover, it appears accepted that a child can own intellectual property (see re D'Angibou, Andrews v Andrews (1880) 15 Ch D 228 and Chaplin v Lesley Frewin (publishers) Ltd (1966) Ch 71).

Furthermore, an infant or child is able to assign the rights in intellectual property, provided the assignment is not required by way of deed, as appears to be the case under the Act. If a deed is required, then the infant or child would most likely be unable to make the assignment, as the disposition is probably voidable by him or her when he or she comes of age. Although the Act provides for a scheme of registration of patents and the issue of a patent deed from the Commissioner, once registration has occurred (be it the grant of a patent or an assignment), there would be no power on the part of the Commissioner to transfer the issue back in the absence of an order of an appropriate court.


Two or more bodies corporate may be nominated jointly and be granted a patent in the same way as two or more individuals. The restrictions applicable to a firm also apply when all or some of the partners of the firm are bodies corporate.