(a) a patent application has been made and, in the case of a complete application, the patent has not been granted; and
(b) an application for a declaration by the Commissioner is made by one or more persons (the section 36 applicants ) in accordance with the regulations; and
(c) the Commissioner is satisfied on the balance of probabilities, in relation to an invention disclosed in the specification filed in relation to the application for the patent:
(i) that the nominated person is not an eligible person, but that the section 36 applicants are eligible persons; or
(ii) that the nominated person is an eligible person, but that the section 36 applicants are also eligible persons;
the Commissioner may declare in writing that the persons who the Commissioner is satisfied are eligible persons are eligible persons in relation to the invention as so disclosed.
(2) The Commissioner may make a declaration under subsection (1) whether or not the patent application lapses or is withdrawn.
(3) The Commissioner must not make a declaration under subsection (1) without first giving the nominated person a reasonable opportunity to be heard.
(3A) The Commissioner may, after making a declaration under subsection (1), make any determination the Commissioner thinks fit for enabling the application to proceed in the name of one or more of the declared persons.
(4) If a complete application is made under section 29 by one or more of the declared persons, the priority date of the claims of a patent for the invention granted to the person, or persons, as the case may be, must be determined under the regulations.
(5) An appeal lies to the Federal Court against a decision by the Commissioner under this section.