7.10.2.8 Trusts

Also in this Chapter:

• 7.10.2.1 Recording New Particulars in the Register
• 7.10.2.2 Change of Ownership
• 7.10.2.3 Security Interests
• 7.10.2.4 Licences
• 7.10.2.5 Court Orders
• 7.10.2.6 Equitable Interests
• 7.10.2.7 Effect of Registration or Non-Registration
• ​​​​​​​7.10.2.9 False Entries in the Register

Key Legislation:​​​​​​​

Patents Act:

• s188 Trusts not registrable  

Section 188 of the Patents Act provides that:

“Notice of any kind of trust relating to a patent or licence is not receivable by the Commissioner and must not be registered.”

A trust relationship arises where a person has property or rights which they hold or are bound to exercise for or on behalf of another for the accomplishment of some particular purpose.

The requirement that a trust is not receivable means no more than the Commissioner is precluded from ‘receiving’ the trust in the same way as a court would ‘not receive’ inadmissible evidence.  That is, a notice of trust can be placed before the Commissioner, but the Commissioner can not act upon such a notice to alter the registered particulars.  Nor is the Commissioner obliged to consult or seek the approval of beneficiaries if a trustee who is registered, assigns or takes other actions in regard to those rights.

The requirement that a notice of trust must not be registered does not exclude registration of a trustee if the trustee holds the legal interest in the patent rights.  Section 188 merely prevents notification of the trust or details of the trust being recorded. That is, section 188 permits trustees who have good title to the legal interest in the rights to be registered, the Commissioner being obliged to record the details of those prima facie so entitled without noting the trust relationship.

Thus, where a request is made to record a trustee in the Register, the trustee can be recorded so long as the usual requirement for supporting evidence has been met.  The Register entry should make no reference to the person's status as trustee. Any provisions in a deed of assignment setting out obligations as between the trustee and the beneficiaries of that trust are not relevant and must not be recorded in the Register.