Welcome to the new version of the Patents Manual. Please note there are changes to the numbering and sequence of the chapters and pages in the manual. You are encouraged to take the time to explore and familiarise yourself with this new structure.

7.7.1 Withdrawal of an Opposition

Date Published

Key Legislation:

Patents Act:

  • s18 Patentable inventions
  • s40 Specifications
  • s59 Opposition to grant of standard patent
  • s97 Re-examination of complete specifications
  • s98 Report on re-examination
  • s101G Re-examination of complete specification of innovation patents
  • s137
  • s141 Withdrawal of applications

Patents Regulations:

Related Chapters:

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


Relevant Legislation

The Act

Section 18Patentable inventions
Section 40Specifications
Section 59Opposition to grant of standard patent
Section 97Re-examination of complete specifications
Section 98Report on re-examination
Section 101GRe-examination of complete specification of innovation patents
Section 141Withdrawal of applications

The Regulations

Chapter 5Opposition




While sections 137 and 141 provide for an opposed patent or application to be surrendered or withdrawn, respectively, an opponent may withdraw an opposition at any time, by filing a notice of withdrawal in the approved form (available on the IP Australia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opponent fails to appear at a hearing, either in person or by written submissions, the opposition is not deemed to be withdrawn.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Costs when an opposition is withdrawn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 7.9 Costs.


Amended Reasons

Amended Reason Date Amended
Back to top