Закон 2000 года «О внесении поправок в Закон «О патентах» (инновационные патенты)», Австралия

The Parliament of Australia enacts:

Schedule 1—Amendment of the Patents Act 1990

1 Section 3 (index of expressions)

Insert the following entries in their appropriate alphabetical positions, determined on a letter by letter basis: certified formalities check innovation patent

2 Section 3 (index of expressions)

Omit: divisional application petty patent

3 Section 4

Repeal the section, substitute:

50 Application or grant may be refused in certain cases

(1)

The Commissioner may refuse to accept a request and specification relating to a standard patent, or to grant a standard patent:

(a)

for an invention the use of which would be contrary to law; or

(b)

on the ground that the specification claims as an invention:

(i)

a substance that is capable of being used as food or medicine (whether for human beings or animals and whether for internal or external use) and is a mere mixture of known ingredients; or

(ii)

a process producing such a substance by mere admixture.

(2)

The Commissioner may refuse to accept a specification relating to a standard patent containing a claim that includes the name of a person as the name, or part of the name, of the invention so far as claimed in that claim.

51 Appeal

An appeal lies to the Federal Court against a decision of the Commissioner under this Division.

52 Formalities check and acceptance of innovation patents

(1)

If a complete application for an innovation patent is made, the Commissioner must undertake a formalities check in respect of the application.

(2)

If satisfied that the application passes the formalities check, the Commissioner must accept the patent request and complete specification.

23 Subsection 54(1)

Omit “for a patent”, substitute “for a standard patent”.

24 Paragraph 54(4)(a)

After “divisional application”, insert “for a standard patent provided for in section 79B”.

25 Subsection 54(5)

After “divisional application”, insert “for a standard patent provided for in section 79B”.

26 Paragraph 54(6)(a)

After “divisional application”, insert “for a standard patent provided for in section 79B”.

26A Subsection 55(1)

After “under section 54”, insert “or under subsection 62(3)”.

27 Subsection 55(2)

Omit “a petty”, substitute “an innovation”.

28 Subsection 57(2)

Repeal the subsection.

29 Subsection 57(3)

Omit “Neither subsection (1) nor (2) gives”, substitute “Subsection (1) does not give”.

30 Subsection 57(4)

Repeal the subsection, substitute:

(4) It is a defence to proceedings under subsection (1) in respect of an act done:

(a) after the complete specification became open to public inspection; and

(b) before the patent request was accepted: if the defendant proves that a patent could not validly have been granted to the applicant in respect of the claims (as framed when

the act was done) that are alleged to have been infringed by the doing of the act.

31 Chapter 5 (heading)

Repeal the heading, substitute:

62 Grant and publication of innovation patent

(1) If:

(a)

the Commissioner accepts a patent request and complete specification filed in respect of an application for an innovation patent; and

(b)

a prohibition order is not in force under subsection 152(3) or

173(1) in relation to the application; the Commissioner must grant the innovation patent by sealing an innovation patent in the approved form.

(2)

If an innovation patent is granted, the Commissioner must publish a notice in the Official Journal stating that:

(a)

the innovation patent has been granted; and

(b)

the patent request and complete specification are open to public inspection.

(3)

If:

(a)

a divisional application provided for in section 79B is made for an innovation patent; and

(b)

a notice is published in the Official Journal that the complete specification filed in respect of the divisional application is open to public inspection;

the Commissioner must also publish in the Official Journal a notice that the complete specification filed in respect of the original application on which the divisional application is based is open to public inspection.

35 Paragraph 64(2)(a)

Omit “a patent application”, substitute “an application for a standard patent”.

36 Subsection 64(2)

Omit “patent cannot”, substitute “standard patent cannot”.

37 At the end of section 66

Add:

(2) If:

(a) the Commissioner is satisfied that particulars on a patent are incorrect because of an error or omission by the Commissioner; and

(b) the patent is returned to the Commissioner; the Commissioner may seal a duplicate of the patent.

38 Section 68

Repeal the section, substitute:

68 Term of innovation patent

The term of an innovation patent is 8 years from the date of the

patent.

39 Part 3 of Chapter 6 (heading)

Repeal the heading, substitute:

79B Divisional applications prior to grant of patent

(1) If a complete patent application for a patent is made (but has not lapsed or been refused or withdrawn), the applicant may, in accordance with the regulations, make a further complete application for a patent for an invention:

(a)

disclosed in the specification filed in respect of the first-mentioned application; and

(b)

where the first-mentioned application is for a standard patent and at least 3 months have elapsed since the publication of a notice of acceptance of the relevant patent request and specification in the Official Journal—falling within the scope of the claims of the accepted specification.

(1A) The reference to a complete patent application first-mentioned in subsection (1) does not include a reference to a divisional application for an innovation patent provided for in section 79C.

(2) In this section:

applicant has the same meaning as in section 38.

79C Divisional applications for innovation patents may be made after grant of an innovation patent

Applications may be made

(1) A patentee of an innovation patent (the first patent) may make a complete application for another innovation patent for a further invention disclosed in the first patent if the invention was disclosed in the complete specification filed in respect of the application on which the first patent was sealed.

When further applications must be made

(2) The patentee may only make the further complete application during the period that commences on the day an examination of the first patent begins and ends at the end of a period prescribed in the regulations.

When does an examination begin?

(3) For the purposes of subsection (2), an examination of the patent begins:

(a)

if the examination has been requested under paragraph 101A(b)—on the day the request was made; or

(b)

if the Commissioner decided to examine the patent under paragraph 101A(a)—on the day the Commissioner made that decision.

43 Section 80

Repeal the section, substitute:

80 Chapter does not apply to innovation patents

This Chapter does not apply in relation to innovation patents.

44 Subsection 88(2)

Repeal the subsection.

45 Subsection 89(1)

After “applications”, insert “for standard patents”.

46 Chapter 9 (heading)

Repeal the heading, substitute:

96A Chapter does not apply to innovation patents

This Chapter does not apply in relation to innovation patents.

48 Subsection 98(1)

Omit “immediately”.

49 Subsection 98(2)

After “available”, insert “only”.

50 At the end of subsection 99(2)

Add “or 107”.

51 After Chapter 9

Insert:

101A Examination may be requested or Commissioner may decide to examine

After the grant of an innovation patent, the Commissioner:

(a)

may, if the Commissioner decides to do so; and

(b)

must, if asked to do so, in writing, by the patentee or any

other person; examine the complete specification relating to an innovation patent.

101B Examination of an innovation patent

What the Commissioner must do in examining a patent

(1) If the Commissioner examines an innovation patent under section 101A, the Commissioner must:

(a) examine the complete specification relating to the patent to determine if the patent is invalid and should be revoked because a ground set out in subsection (2), (4), (5), (6) or (7) is made out; and

(b) report on the grounds set out in those subsections. These are the only grounds for revocation under this section.

Grounds for revocation relating to validity

(2)

The grounds for revocation under subsection (1) include the following:

(a)

that the specification does not comply with section 40;

(b)

that the invention, so far as claimed, does not comply with paragraph 18(1A)(a) or (b);

(c)

that the invention is not a patentable invention under subsection 18(2) or (3);

(d)

that the use of the invention would be contrary to law.

(3)

For the purposes of working out whether the invention does not comply with paragraph 18A(1)(b), the prior art base (referred to in that paragraph) is to be taken not to include information made publicly available only through the doing of an act anywhere in the patent area.

Revocation on ground that invention claims a substance capable of being used as food or medicine etc.

(4) A further ground for revocation is that the patent claims as an invention:

(a)

a substance that is capable of being used as food or medicine (whether for human beings or animals and whether for internal or external use) and is a mere mixture of known ingredients; or

(b)

a process producing such a substance by mere admixture.

Revocation on ground that patent includes a name

(5) A further ground for revocation is that the patent contains a claim that includes the name of a person as the name, or part of the name, of the invention so far as it is claimed in that claim.

Revocation on grounds of multiple patents for one invention

(6) A further ground for revocation is that:

(a)

the innovation patent claims an invention that is the same as an invention that is the subject of a patent and is made by the same inventor; and

(b)

the relevant claim or claims in respect of each patent have the same priority date or dates.

Revocation for grounds set out in the regulations

(7) A further ground for revocation is that the complete specification does not comply with such other matters (if any) as are prescribed.

101C How and when examination to be carried out

The examination under section 101B must be carried out:

(a)

in accordance with the regulations; and

(b)

within the period prescribed.

101D Commissioner may get information on searches

The Commissioner may, from time to time, by notice in writing, direct the patentee to inform the Commissioner of the results of the searches specified in the notice, being searches carried out in a foreign country by a specified patent office or organisation in respect of a corresponding application filed outside Australia.

101E Certificate of examination

If:

(a)

the Commissioner decides in writing that, after examining a patent under section 101B, a ground for the revocation of a patent has not been made out, or that any such ground has been removed; and

(b)

the patent has not ceased under section 143A;

the Commissioner must:

(c)

notify the patentee and the person who requested the examination (if that person is not the patentee) that the patent has been examined and that a certificate of examination is to be issued; and

(d)

publish a notice of the examination having occurred in the Official Journal; and

(e)

issue a certificate of examination to the patentee in the form approved by the Commissioner; and

(f)

register the issue of the certificate.

101F Revocation of innovation patents following examination under section 101B

(1)

If:

(a) the Commissioner considers that, after examining a patent under section 101B, a ground for the revocation of a patent has been made out and that the ground has not been removed; and (b) the patent has not ceased under section 143A; the Commissioner must revoke the patent.

(2)

If the Commissioner revokes the patent:

(a)

the Commissioner must notify the patentee and the person who requested the examination (if that person is not the patentee) of the revocation; and

(b)

register the revocation of the patent.

(3)

The Commissioner must not revoke a patent under this section unless the Commissioner:

(a)

has given the patentee a reasonable opportunity to be heard; and

(b)

has, if appropriate, given the patentee a reasonable opportunity to amend the relevant specification for the purposes of removing a ground for the revocation of the patent and the patentee has failed to do so.

(4)

An appeal lies to the Federal Court against a decision of the Commissioner revoking a patent.

101G Re-examination of complete specifications of innovation patents

(1) Subject to subsections 101K(2) and (3) and the regulations, after an innovation patent has been certified, the Commissioner:

(a)

may, if the Commissioner decides to do so; and

(b)

must, if asked to do so, in writing, by the patentee or any

other person; re-examine the complete specification relating to the patent.

(2)

If the Commissioner re-examines an innovation patent under subsection (1):

(a)

the Commissioner must re-examine the complete specification relating to the patent to determine if the patent is invalid and should be revoked because a ground set out in subsection (3) is made out; and

(b)

the Commissioner must report on the grounds set out in subsection (3).

(3)

The grounds for the revocation of the patent under subsection (2) are whether the invention, so far as claimed in any claim and when compared with the prior art base as it existed before the priority date of that claim:

(a)

is not novel; and

(b)

does not involve an innovative step.

(4)

There are no other grounds for the revocation of a patent under subsection (2).

(5)

For the purposes of subsection (3), the prior art base is to be taken not to include information made publicly available only through the doing of an act anywhere in the patent area.

101H Patentee statements

(1)

If the Commissioner reports that, after re-examining a patent under section 101G, a ground for the revocation of the patent has been made out, the patentee may, within the prescribed period, file a

statement, in accordance with the regulations, disputing the whole or any part of the report.

(2)

The patentee may file a statement whether or not the patentee takes steps to amend the complete specification, or files a statement of amendments in accordance with a direction under section 106.

101J Revocation of innovation patent following re-examination

(1)

If the Commissioner makes an adverse report on a re-examination under section 101G, the Commissioner may, by notice in writing, revoke the patent, either wholly or so far as it relates to a particular claim, as the case requires.

(2)

If the Commissioner revokes the patent:

(a)

the Commissioner must notify the patentee and the person who requested the examination (if that person is not the patentee) of the revocation; and

(b)

register the revocation of the patent.

(3)

The Commissioner must not revoke a patent under this section unless:

(a)

the Commissioner has given the patentee a reasonable opportunity to be heard; and

(b)

the Commissioner has considered the statement made by the patentee under section 101H (if any); and

(c)

the Commissioner has, if appropriate, given the patentee a reasonable opportunity to amend the relevant specification for the purpose of removing any ground for revocation and the patentee has failed to do so.

(4)

The Commissioner must not revoke a patent under this section while relevant proceedings in relation to that patent are pending.

(5)

The patentee may appeal to the Federal Court against a decision of the Commissioner under this section.

101K Relevant proceedings and re-examination

(1)

If the validity of an innovation patent is disputed in any proceedings before a prescribed court under this Act, the court may direct the Commissioner to re-examine the complete specification

relating to the patent. If so directed, the Commissioner must re-examine the specification accordingly.

(2)

If relevant proceedings in relation to an innovation patent are pending, the Commissioner must not re-examine the complete specification relating to the patent.

(3)

If:

(a) the Commissioner has started to re-examine a complete specification relating to an innovation patent; and

(b) relevant proceedings in relation to the patent are started; the Commissioner must not continue the re-examination.

101L Copies of report to be given to court

A copy of a report under paragraph 101G(2)(b), and of any statement filed under section 101H in relation to the report, must, if the re-examination was directed under subsection 101K(1), be given to the court that gave the direction.

101M Opposition to innovation patent

The Minister, or any other person, may, in accordance with the regulations, oppose an innovation patent that has been certified and seek the revocation of it, on one or more of the following grounds of invalidity, but on no other:

(a)

that the patentee is either:

(i)

not entitled to the patent; or

(ii)

entitled to the patent but only in conjunction with some other person;

(b)

that the invention is not a patentable invention because it does not comply with paragraph 18(1A)(a) or (b);

(c)

that the invention is not a patentable invention under subsection 18(2) or (3);

(d)

that the complete specification does not comply with subsection 40(2) or (3).

101N Hearing and decision by the Commissioner

(1)

If an innovation patent has been opposed under section 101M, the Commissioner must decide the case in accordance with the regulations.

(2)

The Commissioner must give the opponent and the patentee a reasonable opportunity to be heard before deciding the case.

(3)

The Commissioner may, in deciding whether to revoke the patent, take into account any ground on which the grant of an innovation patent may be opposed, whether relied upon by the opponent or not.

(4)

Subject to subsection (6), if the Commissioner is satisfied that a ground exists for the revocation of an innovation patent, the Commissioner may revoke the patent in writing either wholly or so far as it relates to a particular claim.

(5)

If the Commissioner revokes the patent:

(a)

the Commissioner must notify the patentee and the opponent of the revocation; and

(b)

register the revocation of the patent.

(6)

The Commissioner must not revoke a patent under this section unless the Commissioner has, where appropriate, given the patentee a reasonable opportunity to amend the relevant specification for the purpose of removing any ground for revocation and the patentee has failed to do so.

(7)

The patentee, and any opponent, may appeal to the Federal Court against a decision of the Commissioner under this section.

101P Relevant proceedings and opposition

If relevant proceedings in relation to an innovation patent are pending, the Commissioner must not make a decision under this Part in relation to the patent without the leave of the court.

52 Subsection 102(2)

Repeal the subsection, substitute:

Certain amendments of complete specification are not allowable

after relevant time

(2) An amendment of a complete specification is not allowable after the relevant time if, as a result of the amendment:

(a)

a claim of the specification would not in substance fall within the scope of the claims of the specification before amendment; or

(b)

the specification would not comply with subsection 40(2) or (3).

(2A) For the purposes of subsection (2), relevant time means:

(a)

in relation to an amendment proposed to a complete specification relating to a standard patent—after the specification has been accepted; or

(b)

in relation to an amendment proposed to a complete specification relating to an innovation patent—after the Commissioner has made a decision under paragraph 101E(a) in respect of the patent.

Amendment of innovation patent request not allowable in certain

circumstances

(2B) An amendment to a patent request relating to an innovation patent application is not allowable if:

(a)

the patent application was provided for in section 79C; and

(b)

the effect of the proposed amendment would be to convert the application from an application for an innovation patent to an application for a standard patent.

Note: The following heading to subsection 102(1) is inserted “Amendment of complete specification not allowable if amended specification would claim matter not in substance disclosed in the filed specification”.

Meaning of relevant time

53 Paragraph 106(1)(b)

Repeal the paragraph, substitute:

(b) the Commissioner is satisfied that the patent is invalid on grounds that could be removed by appropriate amendments of the specification following:

(i)

in the case of a standard patent—re-examination of the patent; or

(ii)

in the case of an innovation patent—examination of, re-examination of, or opposition to, the patent;

54 Paragraph 107(1)(a)

Repeal the paragraph, substitute:

(a) a complete application for a standard patent has been made; and

Note: The heading to section 107 is altered by omitting “patent applications” and substituting “applications for standard patents”.

55 Section 108

Repeal the section.

56 Section 109

Omit “106, 107 or 108”, substitute “106 or 107”.

57 Section 111

Repeal the section.

57A Subsection 114(2)

Repeal the subsection.

58 After section 114

Insert:

114A Objection cannot be taken to certain amended claims

(1)

This section applies if:

(a)

a complete specification (the original specification) has been amended; and

(b)

after the amendment, the amended specification claims matter that was in substance disclosed as a result of the amendment; and

(c)

after the filing date of the original specification there is a publication or use of the invention as described in the original specification.

(2)

If this section applies, objection cannot be taken to the amended specification, and a patent is not invalid, on the ground that the invention, so far as claimed in the amended specification and having regard to the publication or the use of the invention described in the original specification, does not involve:

(a)

in the case of a standard patent—an inventive step; or

(b)

in the case of an innovation patent—an innovative step.

59 Subsection 120(1)

Omit “Infringement”, substitute “Subject to subsection (1A),

infringement”.

60 After subsection 120(1)

Insert:

(1A) Infringement proceedings in respect of an innovation patent cannot be started unless the patent has been certified.

61 At the end of subsection 126(1)

Add: ; and (c) if the patent is an innovation patent—the patent has been certified.

62 Section 129

Repeal the section, substitute:

129 Court’s power to grant relief if threats related to a standard patent or standard patent application

If an application under section 128 for relief relates to threats made in respect of a standard patent or an application for a standard patent, the court may grant the applicant the relief applied for unless the respondent satisfies the court that the acts about which the threats were made infringed, or would infringe:

(a)

a claim that is not shown by the applicant to be invalid; or

(b)

rights under section 57 in respect of a claim that is not shown by the applicant to be a claim that would be invalid if the patent had been granted.

129A Threats related to an innovation patent application or innovation patent and court’s power to grant relief

Certain threats of infringement proceedings are always unjustifiable

(1) If:

(a)

a person:

(i)

has applied for an innovation patent, but the application has not been determined; or

(ii)

has an innovation patent that has not been certified; and

(b)

the person, by means of circulars, advertisements or otherwise, threatens a person with infringement proceedings or other similar proceedings in respect of the patent applied for, or the patent, as the case may be;

then, for the purposes of an application for relief under section 128 by the person threatened, the threats are unjustifiable.

Courts power to grant relief in respect of threats made by the applicant for an innovation patent or the patentee of an uncertified innovation patent

(2) If an application under section 128 for relief relates to threats made in respect of an innovation patent that has not been certified or an application for an innovation patent, the court may grant the applicant the relief applied for.

Courts power to grant relief in respect of threats made by the patentee of a certified innovation patent

(3) If an application under section 128 for relief relates to threats made in respect of a certified innovation patent, the court may grant the applicant the relief applied for unless the respondent satisfies the court that the acts about which the threats were made infringed, or would infringe, a claim that is not shown by the applicant to be invalid.

63 At the end of subsection 130(3)

Add:

Note: Infringement proceedings cannot be commenced in respect of an innovation patent unless the patent has first been certified (see subsection 120(1A)).

64 Subsection 130(4)

After “proceedings”, insert “under section 138”.

65 At the end of subsection 130(4)

Add:

Note: Revocation proceedings under section 138 cannot be commenced in respect of an innovation patent unless the patent has first been certified (see subsection 138(1A)).

66 Subsection 133(1)

Omit “A”, substitute “Subject to subsection (1A), a”.

67 After subsection 133(1)

Insert:

(1A) A person cannot apply for an order in respect of an innovation patent unless the patent has been certified.

68 Subsection 134(1)

Omit “standard”. Note: The heading to section 134 is altered by omitting “standard”.

69 Subsection 138(1)

Omit “The”, substitute “Subject to subsection (1A), the”.

70 After subsection 138(1)

Insert:

(1A) A person cannot apply for an order in respect of an innovation patent unless the patent has been certified.

71 Section 141

Repeal the section, substitute:

141 Withdrawal of applications

(1)

A patent application may be withdrawn at any time except during a period prescribed for the purposes of this section.

(2)

A patent application is to be treated as having been withdrawn if, and only if, the applicant lodges a written notice of withdrawal signed by the applicant.

72 Subsection 142(3)

Omit “patent”, substitute “standard patent”.

73 Subsection 142(4)

Repeal the subsection.

74 After section 143

Insert:

143A Ceasing of innovation patents

An innovation patent ceases if:

(a)

the fee for filing the request and accompanying specification relating to an application for an innovation patent is not paid in accordance with the regulations; or

(b)

after an examination of the patent has been requested under paragraph 101A(b), the patentee does not pay the prescribed fee for the examination within the prescribed period; or

(c)

the Commissioner does not make a decision under paragraph 101E(a) within the period prescribed for the purposes of this paragraph; or

(d)

the patentee does not pay a renewal fee for the patent within the prescribed period; or

(e)

the patentee does not comply with a direction of the Commissioner under section 106 within the time allowed by the Commissioner under that section.

75 After subsection 144(1)

Insert:

(1A) A condition in a contract relating to the sale or lease of, or a licence to exploit, an invention the subject of an innovation patent is void if the effect of the condition would be to:

(a)

prohibit the buyer, lessee or licensee from applying for examination of the patent; or

(b)

impose restrictions on the circumstances in which the buyer, lessee or licensee may apply for examination of the patent.

76 Paragraph 151(4)(c)

Omit “or for a petty patent”.

77 Subsection 153(2)

Repeal the subsection, substitute:

(2) While an order is in force in relation to an application for an innovation patent, the application may proceed up to the acceptance of the patent request and complete specification but a patent must not be granted on the application.

78 Subsection 169(1)

Omit “A”, substitute “Subject to subsection (4), a”.

79 At the end of section 169

Add:

(4) An application under subsection (1) in respect of an innovation patent cannot be made unless the patent has been certified.

80 Subsection 174(3)

Repeal the subsection, substitute:

(3) While a prohibition order is in force in relation to an application for an innovation patent, the application may proceed up to the acceptance of the patent request and complete specification, but a patent must not be granted on the application.

81 Paragraph 176(c)

Omit “or for a petty patent”.

82 After subsection 178(1)

Insert:

(1A) A person must not falsely represent that he or she, or another person, is the patentee of an innovation patent that has been certified.

Penalty: 60 penalty units.

83 At the end of subsection 186(1)

Add: The Register is to contain 2 parts as follows:

(a)

a part dealing with standard patents; and

(b)

a part dealing with innovation patents.

84 Section 187

Repeal the section, substitute:

187 Registration of particulars of patents etc.

(1)

Particulars of standards patents in force, and other prescribed particulars relating to standard patents (if any), must be registered in that part of the Register dealing with standard patents.

(2)

Particulars of innovation patents in force, and other prescribed particulars relating to innovation patents (if any), must be registered in that part of the Register dealing with innovation patents.

85 Section 204

Omit “section 21”, substitute “section 15B”.

86 Subsection 223(4)

Repeal the subsection, substitute:

(4) The Commissioner must advertise in the Official Journal:

(a)

an application made for an extension of time for more than 3 months; or

(b)

an application made for an extension of time for doing a prescribed relevant act in prescribed circumstances.

87 Subsection 223(9)

Omit “an extension of time for more than 3 months is granted for doing

a relevant act,”, substitute:

the Commissioner grants:

(a)

an extension of more than 3 months for doing a relevant act; or

(b)

an extension of time for doing a prescribed relevant act in prescribed circumstances;

88 Paragraph 224(1)(a)

Omit “or 66”, substitute “, 52 or 66”.

89 At the end of subsection 227(1)

Add “in accordance with the regulations”.

90 Subsections 227(3), (4), (5) and (6)

Repeal the subsections, substitute:

(3) The regulations may provide for the consequences (for the purposes of this Act) of failing to pay a fee in accordance with the regulations.

Note: Some provisions of this Act provide expressly or implicitly for the consequences of failing to pay a fee (for example, see subsections 89(3) and 142(2), section 143, subsection 151(4) and section 176). Regulations cannot provide for consequences inconsistent with those provisions.

(4)

In particular, the regulations may provide that, for the purposes of this Act:

(a)

an act is not to be done, or is taken not to have been done, if the fee for doing the act is not paid in accordance with the regulations; or

(b)

a document is not filed, or is taken not to have been filed, if the fee for filing the document is not paid in accordance with the regulations; or

(c)

a patent application lapses, or is taken to have lapsed, if the fee for filing the request and accompanying specification is not paid in accordance with the regulations.

(5)

Subsection (4) does not limit subsection (3).

91 Paragraph 228(2)(d)

Repeal the paragraph.

92 After paragraph 228(2)(h)

Insert:

(ha) setting out the formalities checking process for innovation patents including, in particular, the following matters:

(i)

specifying the formalities requirements (including compliance with the requirements of subsections 18(2) and (3)) that must be met in respect of an application for an innovation patent; and

(ii)

empowering the Commissioner to direct an applicant for an innovation patent to do such things as are necessary to ensure that the application is in accordance with the requirements of the regulations relating to the preparation of documents for filing; and

(iii) providing for the lapsing of the application if such a direction is not complied with within a time specified in the regulations; and

(iv) providing for the restoration of an application that has so lapsed; and

93 Paragraph 228(2)(j)

Omit “patent”, substitute “standard patent”.

94 Schedule 1 (Dictionary)

Insert:

certified, in respect of an innovation patent other than in section 19, means a certificate of examination issued by the Commissioner under paragraph 101E(e) in respect of the patent.

95 Schedule 1 (Dictionary) (definition of complete specification)

Repeal the definition, substitute:

complete specification means (other than in section 116) a specification filed in respect of a complete patent application or, if the specification has been amended, the complete specification as amended.

96 Schedule 1 (Dictionary) (definition of divisional application)

Repeal the definition.

97 Schedule 1 (Dictionary) (definition of examination)

Repeal the definition, substitute:

Schedule 2—Application, saving and transitional provisions

Schedule 3—Consequential amendment of other Acts