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7.14.2 AAT Review

Date Published

Key Legislation:

Patents Act:

  • s32 Disputes between applicants etc.  
  • s74 Acceptance or refusal of application
  • s223 Extensions of time  
  • s224 Review of decisions  

Patents Regulations:


What decisions are reviewable by the AAT

Section 224 and reg 22.26 list the decisions under the Act and Regulations that are reviewable by the Administrative Appeals Tribunal (AAT).  

These include decisions under:

Section 223 - Extensions of time

Section 32 - Disputes between applicants

Section 74 - Refusal under s74(3) of an application for an extension of term

Where a decision is issued that is reviewable by the AAT, the statement of reasons, or more usually the covering letter, should indicate that fact.




The procedure for seeking review is set by the Administrative Appeals Tribunal Act 1975 and associated Regulations. Information is available from the AAT.

The right to seek review is not limited to the parties who were involved in the particular matter leading to the decision concerned. The AAT Act specifically gives a right of review to persons whose interests are affected by the decision (see sec 27 of the AAT Act). It also provides for other affected parties to be joined in the proceedings, such as where the matter before the Commissioner was an opposition or dispute between applicants.

The time limits for filing an appeal to the AAT are set out in sec 29 of the AAT Act. In general, the time is 28 days commencing on the date of receipt of the document setting out the decision. However, the Tribunal may upon application in writing extend the time for applying for a review of a decision (sec 29(7)), and even though that time has expired (sec 29(8)).

Section 28(1) of the AAT Act allows a person, who has received a decision which does not set out the findings on material questions of fact referring to the evidence or other material on which those findings were based and giving reasons for the decision, to apply in writing to the decision maker to furnish such a statement. This is required to be done by the decision maker as soon as practicable, but in any case within 28 days of receipt of the request.

Notification of the application for review will be provided to the Commissioner by the AAT. On receipt of this the Commissioner will prepare and arrange filing of the documents required by sec 37 of the AAT Act (according with the relevant AAT Practice Directions).



Nature of review

The powers of the Tribunal on appeal are stated in sec 43(1) (AAT Act) to be:

"(1) For the purposes of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:

(a)  affirming the decision under review;

(b)  varying the decision under review; or

(c)  setting aside the decision under review and:

i)  making a decision in substitution for the decision so set aside; or

ii)  remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal."

Consequently, the AAT is empowered to substitute itself for the primary decision maker and to determine the correct and preferable decision that should be made under the legislation. In this it can consider questions of both fact and law.



Effect on implementing the decision

An application to the AAT for review of a decision does not normally have the effect of staying the decision - see sec 41(1) of the AAT Act.

A party to the proceedings may seek a stay of the decision under sec 41(2) of the AAT Act, which provides:

"(2) The Tribunal or a presidential member may, on request being made, as prescribed, by a party to a proceeding before the Tribunal (in this section referred to as the "relevant proceeding"), if the Tribunal or presidential member is of the opinion that it is desirable to do so after taking into account the interests of any persons who may be affected by the review, make such order or orders staying or otherwise affecting the operation or implementation of the decision to which the relevant proceeding relates or a part of that decision as the Tribunal or presidential member considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review."

The effect of a stay is governed by sec 41(6) of the AAT Act, which provides:

"(6) An order in force under subsection (2) (including an order that has previously been varied on one or more occasions under subsection (3)):

(a)  is subject to such conditions as are specified in the order; and

(b)  has effect until:

(i)  where a period for the operation of the order is specified in the order - the expiration of that period or, if the application for review is decided by the Tribunal before the expiration of that period, the decision of the Tribunal on the application for review comes into operation; or

(ii)  if no period is so specified - the decision of the Tribunal on the application for review comes into operation."

As a result, a stay is usually effective until the date of the decision of the AAT.



Role of the Commissioner

The Commissioner is automatically a party to any application for review filed with the AAT. However, the role taken by the Commissioner is dependent on the circumstances including whether another party has been joined. Similar considerations apply to the Commissioner’s role in appeals - see 7.14.1 Appeals to the Federal Court.


Amended Reasons

Amended Reason Date Amended
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