Commonwealth Consolidated Acts

PATENTS ACT 1990 - SECT 42

  (1)   Where:

  (a)   a complete application has been made for a patent, or a patent has been granted for an invention of a kind mentioned in paragraph   41(2)(a); and

  (b)   the relevant micro - organism was, at the date of filing of the complete specification, reasonably available (within the meaning of section   41) to a skilled person working in the relevant art in the patent area; and

  (c)   the micro - organism has ceased to be so available;

a prescribed court or the Commissioner, on application made in accordance with the regulations, or the Commissioner, on his or her own motion, may declare that the specification does not comply with section   40 unless the deposit requirements are satisfied in relation to the micro - organism.

  (2)   Where a declaration is made under subsection   (1):

  (a)   this Act has effect in relation to the specification accordingly; and

  (b)   section   6 applies as if the references in that section to the date of filing of the specification were references to a date specified in the declaration for the purposes of this subsection.

  (3)   Subsection   (2) does not limit the operation of section   223.

  (4)   Where:

  (a)   an application is made under subsection   (1); or

  (b)   the Commissioner proposes to make a declaration under that subsection on his or her own motion;

the applicant for the patent, or the patentee, as the case may be, must be notified, in accordance with the regulations, of the application or proposal and is entitled to appear and be heard.

  (5)   A declaration by the Commissioner must be made in accordance with the regulations.

  (6)   An office copy of a declaration by a prescribed court must be served on the Commissioner by the Registrar or other appropriate officer of the court.

  (7)   An appeal lies to the Federal Court against a decision of the Commissioner under subsection   (1).

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