Commonwealth Consolidated Acts

PATENTS ACT 1990 - SECT 41

Provisional specifications

  (1A)   A specification is taken to comply with subsection   40(1), so far as it requires a description of a micro - organism, if:

  (a)   the micro - organism is deposited with a prescribed depository institution in accordance with such provisions of the Budapest Treaty as are applicable; and

  (b)   the prescribed circumstances apply.

Complete specifications

  (1)   To the extent that an invention is a micro - organism, the complete specification is to be taken to comply with paragraph   40(2)(a), so far as it requires a description of the micro - organism, if the deposit requirements are satisfied in relation to the micro - organism.

  (2)   Where:

  (a)   an invention involves the use, modification or cultivation of a micro - organism, other than the micro - organism mentioned in subsection   (1); and

  (b)   a person skilled in the relevant art in the patent area could not reasonably be expected to perform the invention without having a sample of the micro - organism before starting to perform the invention; and

  (c)   the micro - organism is not reasonably available to a person skilled in the relevant art in the patent area;

the specification is to be taken to comply with paragraph   40(2)(a), so far as it requires a description of the micro - organism, if, and only if, the deposit requirements are satisfied in relation to the micro - organism.

  (3)   For the purposes of this section, a micro - organism may be taken to be reasonably available to a person even if it is not so available in the patent area.

  (4)   Where:

  (a)   the requirements specified in paragraph   6(c) or (d) cease to be satisfied in relation to a micro - organism; and

  (b)   steps are taken at a later time within the prescribed period in accordance with such provisions (if any) of the regulations as are applicable; and

  (c)   as a result of those steps, if the period during which those requirements are not satisfied is disregarded, those requirements would be satisfied at that later time;

those requirements are to be taken to have been satisfied during the period mentioned in paragraph   (c), and such provisions as are prescribed have effect for the protection or compensation of persons who availed themselves, or took definite steps by way of contract or otherwise to avail themselves, of the invention during that period.

[ Note: see also section   6 in relation to satisfaction of deposit requirements .]