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5.6.1 Relevant Dates, Definitions, Legal Standards, and Other Prescribed Matters (e.g. Publication)

Date Published

Legal standards applied during examination: Overview

The Intellectual Property Laws Amendment (Raising the Bar) Act 2012 set the requirement that a higher standard of proof be applied by the Commissioner when deciding whether or not to accept a standard patent application. Prior to the Raising the Bar Act 2012, the Commissioner was required to accept a patent application ‘unless it appears practically certain’ (Commissioner of Patents v Microcell Ltd (1959) 102 CLR 232 that it would be invalid. This was the “benefit of the doubt” test.

Section 49 of the Patents Act (1990), as amended by the Raising the Bar Act 2012, requires the Commissioner to accept a standard patent application if they are satisfied, on the balance of probabilities that:

  • the invention is for a manner of manufacture;
  • the invention is novel, inventive and useful;
  • the specification complies with section 40; and
  • other requirements prescribed in the Patents Regulations (1991) are met.

Where the Commissioner is not satisfied, they can refuse to accept the patent application. This is the “balance of probabilities” test.

​​​​​​​The intention of the higher standard of proof is to ensure invalid applications do not proceed to acceptance and grant.

Amended Reasons

Amended Reason Date Amended

Published for testing

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