Patents Regulations (Amendment) 1994 No. 387
EXPLANATORY STATEMENT
STATUTORY RULES 1994 No. 387
Issued by the Authority of the Minister for Small Business, Customs and Construction
Patents Act 1990
Patents Regulations (Amendment)
Subsection 228(1) of the Patents Act 1990 (the Act) allows the Governor-General to make regulations for the purposes of the Act and for the conduct of any business relating to the Patent Office.
The Statutory Rules amend the Patents Regulations (the Regulations) to replace the provision that requires the Commissioner of Patents (the Commissioner) to be the Chairperson of the Patent Attorneys Professional Standards Board (PAPSB) with a new provision which provides for the Ministerial appointment of a person who holds, or performs the duties of, a Senior Executive Service office in the Australian Industrial Property Organisation (AIPO). The Statutory Rules also amend the Regulations to allow the Minister to appoint as the Secretary to the PAPSB, a person who holds, or performs the duties of, an office in AIPO. In addition, the Statutory Rules amend Schedule 5 to the Regulations by replacing the prescribed patent attorneys examination subjects 6, 7 and 8 with new subjects that would place greater emphasis on matters of direct relevance to patent attorneys' practice in Australia. The Statutory Rules also make a number of minor consequential changes.
Regulation 1 sets 30 May 1995 as the commencement date for regulations 9 and 10. The remainder of the regulations commence on gazettal.
Regulation 2 identifies the Patents Regulations as those to be amended.
Regulation 3 defines "AIPO" and "Chairperson" for the purposes of Chapter 20 of the Regulations.
This regulation also amends the definition of "member" of the PAPSB in regulation 20.1 of the Regulations by omitting the reference to the "Commissioner" and inserting reference to the "Chairperson", consequential on the changes made by regulation 4.
Regulation 4 omits existing subregulation 20.32(3) of the Regulations and substitutes a new provision which allows the Minister to appoint in writing as Chairperson of the PAPSB, a person who holds, or performs the duties of, a Senior Executive Service office in AIPO. In addition, this regulation inserts new subregulation 20.32(4) which requires that the appointment of the Chairperson be published in the Official journal. This regulation also replaces the reference to "Commissioner" in paragraph 20.32(2)(a) of the Regulations with a reference to "Chairperson".
Regulations 5.6 and 7 amend regulations 20.37, 20.38 and 20.39 of the Regulations to substitute "Chairperson" for "Commissioner", wherever occurring, consequential on the changes made under regulation 4.
Regulation 8 amends regulation 20.40 of the Regulations to allow the Minister to appoint in writing as Secretary to the PAPSB, a person who holds, or performs the duties of, an office in AIPO; consequently removing the restriction that the Secretary must only be an employee of the Patent Office. In addition, new subregulation 20.40(1A) is inserted to require that future appointments of the Secretary of the PAPSB be pu
Overview
The Patents Regulations (Amendment) 1994 No. 387, issued under the authority of the Minister for Small Business, Customs and Construction, amends the Patents Regulations 1991 to address gaps in the administration and oversight of the Patent Attorneys Professional Standards Board (PAPSB). The amendments were made pursuant to subsection 228(1) of the Patents Act 1990, which empowers the Governor-General to create regulations for the Act and the Patent Office. The primary objective of these regulations is to enhance the governance structure of the PAPSB by altering the appointment process for its Chairperson and Secretary. Specifically, the Chairperson of the PAPSB is now appointed by the Minister from a person holding, or performing duties of, a Senior Executive Service office in the Australian Industrial Property Organisation (AIPO), and the Secretary can be appointed from any office within AIPO, thereby broadening the pool of eligible candidates. Additionally, the amendments introduce new subjects for the patent attorneys' examination, aiming to better reflect the practical needs of patent attorneys in Australia. The changes also include minor consequential adjustments to ensure consistency and alignment within the regulatory framework. These amendments seek to strengthen the regulatory oversight of patent attorneys, ensuring their professional standards align with the evolving demands of the patent system in Australia.
Scope and Application
The Patents Regulations (Amendment) 1994 No. 387 amends the Patents Regulations 1991 under the authority granted by Subsection 228(1) of the Patents Act 1990. The regulations apply to the conduct of business relating to the Patent Office and affect the structure and administration of the Patent Attorneys Professional Standards Board (PASP). The amendments introduce changes to the appointment process for the Chairperson and Secretary of the PASP, allowing the Minister to appoint individuals from the Australian Industrial Property Organisation (AIPO) to these roles instead of requiring the Commissioner of Patents to serve as Chairperson. This change is designed to provide greater flexibility and potentially bring new expertise to the oversight of patent attorneys. Additionally, the regulations revise the examination subjects for patent attorneys, emphasising matters directly relevant to their practice in Australia, and make minor consequential amendments to ensure the smooth functioning of the PASP. The amendments commence on different dates, with specific provisions for the Chairperson and Secretary roles starting on 30 May 1995, while the other changes take effect upon gazettal.
Key Provisions
The Patents Regulations (Amendment) 1994 No. 387, issued under the authority of the Minister for Small Business, Customs and Construction, makes several significant changes to the Patents Regulations 1990 (the Regulations). Regulation 4 replaces the previous requirement that the Commissioner of Patents be the Chairperson of the Patent Attorneys Professional Standards Board (PAPSB) with a new provision that allows the Minister to appoint a person who holds, or performs the duties of, a Senior Executive Service office in the Australian Industrial Property Organisation (AIPO) as the Chairperson (regulation 4). This change is intended to provide greater flexibility in the appointment process and ensure that the Chairperson has the appropriate expertise and experience. Regulation 8 allows the Minister to appoint a person who holds, or performs the duties of, an office in AIPO as the Secretary to the PAPSB, thereby removing the previous restriction that the Secretary must be an employee of the Patent Office (regulation 8).
The Regulations impose specific obligations on the parties and entities they govern. Firstly, the Minister must appoint a Chairperson and Secretary to the PAPSB from within the ranks of the AIPO, ensuring that these individuals possess the necessary qualifications and experience (regulations 4 and 8). Secondly, the Chairperson must be published in the Official Journal upon appointment, ensuring transparency and accountability in the appointment process (regulation 4(4)). Thirdly, the Regulations require that any future appointments of the Secretary of the PAPSB be published in the Official Journal, maintaining transparency in the appointment process (regulation 8(1A)).
Failure to comply with the provisions of the Patents Regulations may result in various consequences. Firstly, if the Minister fails to appoint a Chairperson or Secretary to the PAPSB in accordance with the Regulations, this may be considered a breach of the Regulations and could result in legal action being taken against the Minister. Secondly, if the Chairperson or Secretary is appointed without the necessary qualifications or experience, this may also be considered a breach of the Regulations and could result in disciplinary action being taken against the individual concerned. However, the Regulations do not specify any particular offences, penalties, or civil or criminal consequences for breach, and the maximum penalties are not stated within the text.