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PATENTS ACT 1990 - SECT 101E

Certificate of examination

  (1)   This section applies to an innovation patent if:

  (a)   after examining the patent under section   101B, the Commissioner decides that he or she is satisfied, on the balance of probabilities, as to the following:

  (i)   the specification complies with subsections   40(2) to (4);

  (ii)   the invention, so far as claimed, complies with paragraphs 18(1A)(a), (b) and (c);

  (iii)   the invention is a patentable invention under subsections   18(2) and (3);

  (iv)   the use of the invention would not be contrary to law;

  (v)   the patent does not claim as an invention 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;

  (vi)   the patent does not claim as an invention a process producing such a substance by mere admixture;

  (vii)   the patent does not contain 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;

  (viii)   the patent does not claim an invention that is the same as an invention that is the subject of a patent and is made by the same inventor, where the relevant claim or claims in respect of each patent have the same priority date or dates;

  (viiia)   each claim in the complete specification has a priority date that is before the day paragraph   101B(2)(ha) commences;

  (ix)   the complete specification complies with such other matters (if any) as are prescribed for the purpose of paragraph   101B(2)(i); and

  (b)   the patent has not ceased under section   143A.

Note:   Paragraph   101B(2)(ha) was inserted by the Intellectual Property Laws Amendment (Productivity Commission Response Part   2 and Other Measures) Act 2020 .

  (2)   If this section applies, the Commissioner must:

  (a)   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

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

  (c)   issue a certificate of examination to the patentee in the approved form; and

  (d)   register the issue of the certificate.


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