Commonwealth Consolidated Regulations

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FEDERAL COURT RULES 2011 - RULE 34.41

Applications under section 105(1) of Patents Act

             (1)  An applicant who wants an order under section 105(1) of the Patents Act must give the Commissioner a notice of intention to apply for the order, accompanied by an advertisement stating the following:

                     (a)  the identity of the proceeding, or proposed proceeding, in which the application will be made;

                     (b)  the particulars of the amendment sought;

                     (c)  the applicant's address for service;

                     (d)  that a person intending to oppose the application who is not a party to the proceeding or proposed proceeding must, within 28 days after publication of the advertisement, give written notice of that intention to:

                              (i)  the Commissioner; and

                             (ii)  each party to the proceeding.

             (2)  The Commissioner must publish the advertisement in the Official Journal .

             (3)  A person who gives notice under paragraph (1)(d) is entitled to be heard in opposition to the application, subject to any order of the Court for costs.

             (4)  A party who has given notice under subrule (1) may file the application within 50 days after publication of the advertisement.

             (5)  The applicant must serve a copy of the application, together with a copy of the patent, patent request or complete specification, whichever is applicable, showing the amendment sought, on:

                     (a)  the Commissioner; and

                     (b)  each party to the proceeding; and

                     (c)  each person who has given notice under paragraph (1)(d).

             (6)  A party may apply to the Court for any of the following orders:

                     (a)  that the applicant give particulars of the grounds relied on for the amendment to each party or other person who opposes the application;

                     (b)  that a party or other person opposing the application give particulars of the grounds relied on in opposition to the amendment to the applicant;

                     (c)  that the application be heard with the proceeding or separately and, if separately, fix the date for hearing the application;

                     (d)  the manner in which evidence will be adduced and, for evidence by affidavit, fix the times within which the affidavits must be filed and served.



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