Database on Flexibilities in the Intellectual Property System

Provisions of Law

Chapter 15 - Special provisions relating to associated technology

147 Certificate by Director as to associated technology

(1) Where the Commissioner considers that a specification in respect of an application may contain information of a kind referred to in the definition of associated technology in subsection 4(1) of the Safeguards Act, the Commissioner must give the Director written notice to that effect together with a copy of the patent request and specification.

(2) On receiving a notice, the Director may, if satisfied that the specification contains information of that kind, issue a certificate to that effect.

(3) Where the Director is satisfied that:

(a) the possession by the applicant or the nominated person of the associated technology containing the information was not in accordance with a permit; or

(b) the communication of the information involved in making the application was not in accordance with an authority;

the Director may include in the certificate:

(d) if the application is a relevant international application - a direction that the application should not be treated as an international application.

(4) Where the Director issues a certificate, the Director must give a copy of it to the Commissioner who must give a copy to the applicant.

152 Notice of prohibitions or restrictions on publication

(1) Where the Director issues a certificate under section 147 in relation to an application, the Director may give written notice to the Commissioner of any prohibitions or restrictions on the publication or communication of the information in the specification, or in a relevant abstract, that the Director considers appropriate.

(2) On receiving a notice, the Commissioner must take such steps as are necessary or expedient to give effect to it.

(3) Without limiting the generality of subsection (2), the Commissioner may, by written order, prohibit or restrict the publication or communication of information about the subject matter of the application, whether generally or in relation to a particular person or class of persons.

(4) A person must not, except in accordance with the written consent of the Commissioner, publish or communicate information in contravention of an order.

Penalty: Imprisonment for 2 years.

153 Effect of order

(1) Where an order is in force in relation to an application for a standard patent, the application may proceed up to the acceptance of the patent request and complete specification, but the complete specification must not be made open to public inspection, the acceptance must not be notified in the Official Journal and a patent must not be granted on the application.

(2) While an order is in force in relation to an application for an innovation patent, the application may proceed up to the acceptance of the patent request and complete specification but a patent must not be granted on the application.

(3) Where an order in relation to an application for a standard patent has been revoked after the acceptance of the patent request and complete specification, the acceptance must be notified in the Official Journal within the prescribed period.

(4) Nothing in this Act prevents disclosing information about an invention to the Director for the purpose of obtaining advice on whether an order should be made, amended or revoked.

Nuclear Non-Proliferation (Safeguards) Act of 1987

4 Interpretation

(1) In this Act, unless the contrary intention appears:

associated technology means any document that contains information (other than information that is lawfully available, whether within Australia or outside Australia and whether for a price or free of charge, to the public or a section of the public):

(a) that is applicable primarily to the design, production, operation, testing or use of:

(i) equipment or plant for:

(A) the enrichment of nuclear material;

(B) the reprocessing of irradiated nuclear material; or

(ii) nuclear weapons or other nuclear explosive devices; or

(b) to which a prescribed international agreement applies and that is of a kind declared by the Minister, in writing, to be information to which this definition applies;

and includes any photograph, model or other thing from which such information may be obtained or deduced.

Title:	Sections 147, 152 and 153 of the Patents Act No. 83 of 1990 as amended by Act No. 35 of 2012 and Section 1(4) of the Nuclear Non-Proliferation (Safeguards) Act of 1987 (version of 20/04/2012)
Field of IP:	Patents
Type of flexibility:	Security exceptions
Summary table:

Legislative Implementation of Flexibilities - Australia

Provisions of Law