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3.7.1 Withdrawal of an Opposition

Date Published

Note: This information applies to oppositions commenced before, on or after 15 April 2013, as specified.

Relevant Legislation

The Act

Section 18

Patentable inventions

Section 40


Section 59

Opposition to grant of standard patent

Section 97

Re-examination of complete specifications

Section 98

Report on re-examination

Section 101G

Re-examination of complete specification of innovation patents

Section 141

Withdrawal of applications

The Regulations

Chapter 5



While sections 137 and 141 provide for an opposed patent or application to be surrendered or withdrawn, respectively, an opponent may withdraw an opposition at any time, by filing a notice of withdrawal in the approved form (available on the IP Australia website).  For notices of withdrawal filed before 25 August 2018 there is a requirement that the notice be signed.

The provisions for withdrawal of an opposition are:

  • For oppositions commenced on or after 15 April 2013, reg 5.26;
  • For oppositions commenced before 15 April 2013, reg 5.15, as in force immediately before 15 April 2013.

Withdrawal will only be effective on the basis of written advice in the approved form.

Failure to take action in an opposition does not constitute withdrawal

Where an opponent fails to take action in an opposition, even if this is done deliberately, it does not constitute withdrawal of the opposition.  Similarly, if an opponent fails to appear at a hearing, either in person or by written submissions, the opposition is not deemed to be withdrawn.  

Irrespective of which party fails to appear at a hearing, the Commissioner is required to consider the evidence filed and determine the opposition. (See Dart Industries v. Crest International (1979) 49 AOJP 2020)

Costs when an opposition is withdrawn

It is common practice for a withdrawing party to negotiate with the other party prior to the withdrawal, in order that each party bears its own costs.  

If an opposition or an opposed application is withdrawn before a hearing, the Commissioner will not automatically make an award of costs but may do so on the application of a party.  For information on costs see 3.9 Costs.

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