3.5.1 Commissioner’s power to make delegations, and types of delegations

Also in this Chapter:

• 3.5.2 Conflict of interest
• 3.5.3 Providing advice to applicants and third parties
• 3.5.4 Other restrictions imposed on examiners

Key Legislation:

• Patents Act​​​​​​​

On this Page

• Overview
• Types of delegations
  • General delegations
    • Examiners and acceptance delegates
    • Senior examiners and supervising examiners
  • Specific delegations
  • Implied delegations
• Exercising delegations

Overview

The Commissioner has certain powers under the Patents Act and can delegate these powers to particular employees or classes of employees, including examiners. Only the commissioner has the power to make, remake, or revoke a delegation.

Examiners cannot process actions unless the appropriate delegation is in place.

This section sets out the types of delegations that are provided to examiners.

Types of delegations

There are 3 types of delegations:

• general delegations;
• specific delegations; and
• implied delegations.

General delegations

The general delegation sets out the powers conferred on examiners and on acceptance delegates.

Examiners and acceptance delegates

A general delegation gives examiners and acceptance delegates the power to conduct examinations and report their findings.

It gives acceptance delegates an additional power to accept patent applications.

Senior examiners and supervising examiners

Senior examiners and supervising examiners have additional powers to enable them to perform the managerial tasks associated with their roles.

For example:

• Senior examiners have the power to accept cases examined by an examiner who does not have acceptance delegation;
• Supervising examiners have the power to transfer responsibility for examination of a particular case from one examiner to another or to themselves where, for example, a dispute arises; and
• Supervising examiners have the power to approve waivers for Invitation to Pay (ITP) fees and so on.

For more information on general delegations and guidelines for their use see ‘Patent delegations’.

Specific delegations

Specific delegations are usually given to specific staff members for specific tasks not covered by a general delegation. For example, a specific delegation might be made so that a staff member can:

• consider applications for extensions of term; and/or
• hear and decide an opposition.

Examiners will require a specific delegation in order to refuse an application. However, the commissioner, deputy commissioners and hearing officers do not need a specific delegation for this because they have the power to refuse matters they have been allocated to decide.

Implied delegations

Most delegations are exercised within RIO, which retains a record of the exercise of the delegation and automatically checks the user’s delegation.

In rare cases, an action that requires the exercise of a delegation may occur without there being any record of the exercise of the relevant power (for example the use of paper forms). Where this has occurred, the matter must be referred to either the Assistant General Manager or the Supervising Examiner (Oppositions), who will decide whether there was an implied delegation or whether the action occurred without the relevant powers.

A case note should be added to the file by an acceptance delegate to indicate what has happened and whether the action should be taken to have happened. The note should also indicate whether the action would have been allowed at the present date, if that had been required. The original form must never be signed and back dated. If the action was done without relevant powers, an Assistant General Manager will annotate the file accordingly.

The applicant should be advised by letter of what has occurred and what has been recorded on the file to remedy the situation.

Exercising delegations

Staff should only exercise the powers they have been delegated. If they have concerns, they should seek advice from their supervisor.

Where a particular person has been delegated a power, they must personally exercise that power and cannot delegate it to another person.

Acceptance delegates should not accept cases on behalf of, or currently assigned to, another examiner, unless they are formally acting as a senior examiner or have been assigned the case (such as a foreign further).

Examiners who exercise a delegation do so upon their own opinion, belief or state of mind in relation to the matter. They do not have to try to ascertain the opinion of the actual commissioner before exercising their delegation.