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7.8 Hearings and Decisions

Date Published

Key Legislation:

Patents Act:

  • s17 Directions to co-owners  
  • s32 Disputes between applicants etc.  
  • s35 Applications by eligible persons following revocation by Commissioner  
  • s36 Other applications by eligible persons  
  • s42 Micro-organisms ceasing to be reasonably available  
  • s60 Hearing and decision by Commissioner  
  • s100A Refusal to grant patent--re-examination before grant  
  • s101 Revocation of patent--re-examination after grant  
  • s101N Hearing and decision by the Commissioner  
  • s106 Amendments directed by Commissioner: patents  
  • s107 Amendments directed by Commissioner: applications for standard patents  
  • s137 Revocation on surrender of patent  
  • s216 Exercise of discretionary power by Commissioner  

Patents Regulations:

  • reg 3.24 Commissioner may request samples and viability statement
  • reg 3.25 Request for Commissioner's certification authorising release of sample of a micro-organism
  • reg 5.19 Hearing and decision--re-examination
  • reg 5.20 Hearing and decision--other circumstances
  • ​​​​​​​reg 10.2C Amendments not allowable for complete specifications
  • reg 22.22 Exercise of discretionary powers by Commissioner

In this topic:

Relevant Legislation

The Act

The Regulations


Office Practice​​​​​​​


Relevant Legislation

The Act

Section 60Hearing and decision by Commissioner
Section 101NHearing and decision by Commissioner
Section 216Exercise of discretionary power by the Commissioner

The Regulations

Regulation 5.19Hearing and decision – re-examination
Regulation 5.20Hearing and decision – other circumstances
Regulation 22.22Exercise of discretionary powers by the Commissioner




The Act requires the Commissioner to afford all parties to an action the opportunity to be heard.  General provisions for hearings are set out in s216(1) and reg 22.22(1):

s216(1):The Commissioner must not exercise a discretionary power under this Act adversely to any person applying for the exercise of that power without first giving that person a reasonable opportunity to be heard.
reg 22.22(1):The Commissioner must give a person an opportunity to be heard before exercising a discretionary power under the Act or these Regulations adversely to the person.


Note: Section 216 only requires the Commissioner to hear the person requesting the exercise of the discretion, whereas reg 22.22 also requires the Commissioner to hear a person who is adversely affected by the decision.

Specific provisions for the Commissioner to hear the parties involved in standard opposition procedures are listed in Chapter 5 of the Regulations. Similarly, specific provisions for the Commissioner to hear certain persons are given in s17, s32, s35, s36, s42, s100A, s101, s106, s107, s137, reg 3.24, reg 3.25 and reg 10.2C.

Office Practice

Whenever a person would have rights to seek a remedy by appeal, prerogative writ or review, e.g. under the Administrative Decisions (Judicial Review) Act, that person is normally offered the opportunity to be heard. This situation may result in an inter partes hearing, but not to an opposition in terms of the Patents Act.

Amended Reasons

Amended Reason Date Amended
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