3.13 Documents not OPI - Orders for Inspection

Note: This information applies on or after 15 April 2013 to documents filed before, on or after that date.

In this topic:

Relevant Legislation

The Act

The Regulations

Overview

Section 55 and reg 4.3 (and equivalent provisions for PCT applications - see below) provide that certain documents are open to public inspection (OPI) in certain circumstances.  Otherwise section 56 prohibits publication and public inspection and mandates under section 56(1)(b) that the documents:

"are not liable to be inspected or produced before the Commissioner or in a legal proceeding unless the Commissioner, court, or any person having power to order inspection or production, directs that the inspection or production be allowed."

Documents that do not become OPI by virtue of reg 4.3 include:

• Reg 4.3(1)(c) - documents that would be privileged from production in legal proceedings on the ground of legal professional privilege (but only up to acceptance or grant of an innovation patent);
• Reg 4.3(2)(a) - a document that is subject to an order of a court or a tribunal that prohibits disclosure of the document or information in the document; and
• Reg 4.3(2)(b) - a document that the Commissioner has reasonable grounds for believing should not be open to public inspection.

Accordingly the Commissioner has the power under reg 4.3(2)(b) to direct that a document not be OPI (whether or not it has previously become OPI) and may direct that a document that is not OPI, whether because of reg 4.3(2)(b) or otherwise, may be inspected.

Inspection in these circumstances will invariably be subject to conditions as to access and require legally enforceable undertakings regarding confidentiality.

The power to exempt documents associated with a PCT application from becoming OPI lies in Section 56A and Reg 4.4.  Specifically, Reg 4.4(7) indicates that a document mentioned in Reg 4.3(2) is not OPI.  That is, documents associated with an unaccepted PCT application which are subject to an order of a court or a tribunal, and/or are documents that the Commissioner believes should not be OPI, are not liable to be inspected.​​​​​​​