Document ID: chunk:federal_register_of_legislation:F2024C00944:front:0:p46
Version: federal_register_of_legislation:F2024C00944
Segment Type: other
Provision Reference: 
Character Range: 118496–121121

under Article 4(1) of the Budapest Treaty the authority has notified the depositor of its inability to furnish samples of the micro‑organism and the Commissioner has not, before the notification, given to the applicant or patentee under subregulation 3.29(2) or (3) a copy of the notice, or the notice, as the case may be, of the requirement—the period of 3 months after the depositor received that notification under Article 4(1)(d) of the Treaty; or
 (iv) in any other case—the day when that new deposit is so made; or
 (d) where the step referred to in paragraph 41(4)(b) of the Act is an amendment of the specification in respect of that patent application or patent—the date of the allowance of the amendment, unless:
 (i) the Commissioner has given the applicant or patentee a copy of a notice under subregulation 3.29(2) or a notice under subregulation 3.29(3), and the applicant or patentee has not asked for leave to amend the specification within the period of 3 months after the copy or the notice was given; or
 (ii) the authority has notified the depositor under Article 4(1) of the Budapest Treaty of its inability to furnish samples of the micro‑organism and:
 (A) the Commissioner has not, before the notification, given to the applicant or patentee under subregulation 3.29(2) or (3) the notice, or a copy of the notice, as the case may be, of the requirement; and
 (B) the applicant or patentee has not asked for leave to amend the specification within the period of 3 months after the depositor received the notification under Article 4(1)(d) of the Treaty.

3.31  Application for declaration that deposit requirements are not satisfied
 (1) An application under section 42 of the Act for a declaration that a specification does not comply with section 40 of the Act unless the deposit requirements are satisfied in relation to a micro‑organism, must:
 (a) be made in the approved form to a prescribed court or the Commissioner; and
 (b) be lodged at the court or filed.
 (2) A person who applies for a declaration under section 42 of the Act must give a copy of the application:
 (a) to the applicant or patentee; and
 (b) to such other person as the court or Commissioner directs.
 (3) If the Commissioner on his or her own motion proposes to declare under section 42 of the Act that the specification in respect of a patent application or patent does not comply with the requirements of section 40 of the Act unless the deposit requirements are satisfied in relation to a micro‑organism, he or she must give to the applicant or patentee a statement of the facts relied upon to justify the making of that