Commonwealth Consolidated Acts

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PATENTS ACT 1990 - SECT 138

Revocation of patents in other circumstances

             (1)  Subject to subsection (1A), the Minister or any other person may apply to a prescribed court for an order revoking a patent.

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

             (2)  At the hearing of the application, the respondent is entitled to begin and give evidence in support of the patent and, if the applicant gives evidence disputing the validity of the patent, the respondent is entitled to reply.

             (3)  After hearing the application, the court may, by order, revoke the patent, either wholly or so far as it relates to a claim, on one or more of the following grounds, but on no other ground:

                     (a)  that the patentee is not entitled to the patent;

                     (b)  that the invention is not a patentable invention;

                     (d)  that the patent was obtained by fraud, false suggestion or misrepresentation;

                     (e)  that an amendment of the patent request or the complete specification was made or obtained by fraud, false suggestion or misrepresentation;

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

             (4)  A court must not make an order under subsection (3) on the ground that the patentee is not entitled to the patent unless the court is satisfied that, in all the circumstances, it is just and equitable to do so.

   



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