Advanta Seeds Pty Ltd and Commissioner of Patents

Advanta Seeds Pty Ltd sought an extension of time to pay a continuation fee for its patent application, which had lapsed due to non-payment by the due date. The Commissioner of Patents granted this extension. Advanta Seeds then sought to recover the costs of the hearing before the Commissioner, arguing that the Commissioner had the jurisdiction to order the Commissioner to pay Advanta Seeds' costs.

The primary legal issue before the Tribunal was whether the Commissioner of Patents had the power to order the Commissioner to pay the costs of a hearing concerning an application for an extension of time to pay a lapsed patent continuation fee. This involved an interpretation of the relevant provisions of the *Patents Act 1990* (Cth) and the *Patents Regulations 1991* (Cth), particularly concerning the Commissioner's discretion in awarding costs.

The Tribunal considered the wording of the *Patents Act* and *Regulations*, noting that while the Commissioner has broad powers to grant extensions of time, the legislation did not expressly grant the Commissioner the power to award costs against the Commissioner in such circumstances. The Tribunal reasoned that the Commissioner's role in such proceedings is primarily administrative and regulatory, and the power to award costs is typically a judicial function. Absent clear statutory authority, the Tribunal concluded that the Commissioner lacked the jurisdiction to order the Commissioner to pay Advanta Seeds' costs.

Consequently, the Tribunal ordered that each party bear their own costs of the hearing before the Tribunal.