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Date Published

Under reg 3.25A, access to a sample of a deposited micro-organism may be restricted.  The applicant may notify the Commissioner at any time before a specification which discloses an invention involving a micro-organism becomes open to public inspection (OPI), that a sample of the deposited micro-organism is only to be provided to a person who is:

  • a skilled addressee without an interest in the invention; and
  • is nominated by the person who made the request for the certification authorising release of the sample.

The time period during which access to the sample is restricted begins when the specification becomes OPI and ends when:

  • a patent is granted on that application; or
  • the application lapses, or is withdrawn or refused.

The Commissioner may, under the provisions of sec 223, extend the time for making the notification.  However, the Commissioner will not grant an extension of time until any pending requests for certification authorising release of a sample have been dealt with.  Furthermore, if any request for certification is received before the grant of the sec 223 request, the sec 223 request is likely to be refused.

Restrictive Access Provisions for National Phase Applications and Processing of Requests

A PCT applicant may make use of the restrictive access provision, even though an application has not yet entered the national phase.  In this situation, there will be no Ecase for the application when the restrictive access notification is received, as an Ecase is only created upon national phase entry in Australia.

When ERA receives a notification, this will be forwarded to the Supervising Examiner CHEM 1. The supervising examiner should:

  1. Check that the notification has been made before OPI, is directed to the Australian Patent Office or the Commissioner and is consistent with reg 3.25A.
  2. Prepare a letter to the applicant or attorney as indicated in 2.7 Annex B – Notification Regarding Release.
  3. Forward the letter to COG, who will then send it to the applicant or attorney.

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