IPA patent 7.10.2.2.4-winding-up-of-companies — IP Australia Patent Manual of Practice and Procedure – 7.10.2.2.4 Winding Up of Companies

Also in this Chapter: 7.10.2.2.1 Assignment 7.10.2.2.2 Change of Name 7.10.2.2.3 Bankruptcy ​​​​​​​ 7.10.2.2.5 Death of Patentee Key Legislation: Patents Act: s215 Death of applicant or nominated person Patents Regulations: reg 22.9 Death of applicant or nominated person Companies can be wound up under a variety of circumstances, ranging from insolvency to a simple voluntary winding up. When a company is insolvent, a liquidator will be involved with the winding up. In this situation, liabilities will exceed assets - so that after the sale of all assets to meet liabilities there is nothing remaining. The liquidator has full powers to deal with the assets of the company, including assigning of any patent rights of the company. A Company may be voluntarily wound up. In this situation the assets will usually be greater than the liabilities, such that there will be a distribution of assets following the payment of all outstanding liabilities. The distribution of assets is done as part of the process of winding up a company, which should occur before the company is deregistered. If a company has been deregistered before the assets have been distributed, then generally the company will need to be reconstituted so that the assets can be distributed in accordance with law. Assertions by the 'former directors' of the company that the rights in a patent belong to them following deregistration are inadequate; there needs to be a formal assignment from the company to themselves - and this cannot occur after the company has been deregistered. If an assignment is executed after deregistration, it will need to be re-done once reinstatement occurs (since entry on our Register does not establish validity of title). However, in some circumstances it is possible for ASIC to execute the assignment on the company's behalf. Where an applicant company was wound up before the patent was granted, the Commissioner can amend the Register under section 215(3) to substitute the name of the person to whom the patent should have been granted. Regulation 22.9 specifies that suitable evidence must be filed to support such an amendment.