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Date Published

Note: The information in this part only applies to:

  • standard patent applications with an examination request filed before 15 April 2013.  
  • innovation patents with an examination request filed before 15 April 2013.
  • innovation patents where the Commissioner decided before 15 April 2013 to examine the patent.

For all other standard patent applications/innovation patents, see Enabling Disclosure of a Micro-Organism by Satisfying the Deposit Requirements.

Section 41(1) states that to the extent that an invention in a complete specification is a micro-organism, then the specification is taken to comply with sec 40(2)(a) where the deposit requirements specified in sec 6 have been met (see also Biological Inventions and the Budapest Treaty).

Note: The Budapest Treaty provides a means for the applicant to fully describe the invention.  Thus, if the description or claims refer to a deposited micro-organism, but the invention can be fully described without the need to rely on the deposit, then the requirements of sec 40(2)(a) are considered to be met.  In these circumstances, there is no statutory basis for requesting that the applicant comply with the Budapest Treaty requirements.

For example, the mere reference to a micro-organism deposit in the specification, e.g. by accession number, does not necessarily mean that the applicant is using the deposited material to comply with the sec 40(2)(a) requirements.  Examiners should consider whether access to the deposited material is a necessary requirement in order to perform the invention, as it is claimed.  If examiners are satisfied from the information on file that the same material is available from another source (e.g. the specification indicates it is commercially available), then they may reasonably conclude that the applicant does not need to rely on the Budapest Treaty deposit to satisfy the requirements of sec 40(2)(a) (see also Inventions Involving the Use, Modification or Cultivation of a Micro-Organism).

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