Patent Rules

Marginal note:Conditions

• 93 (1) For the purpose of subsection 38.1(1) of the Act, the following conditions apply to a deposit of biological material:

  • (a) the deposit of biological material must be made by the applicant or their predecessor in title with an international depositary authority on or before the filing date of the application for a patent;

  • (b) the applicant must, before the day on which the application for a patent becomes open to public inspection at the Patent Office, inform the Commissioner of the name of the international depositary authority and the accession number given by the authority to the deposit;

  • (c) the information required by paragraph (b) must be included in the description;

  • (d) in the case where a sample of the biological material is transferred to a substitute authority under Rule 5 of the Regulations under the Budapest Treaty, the applicant or patentee must inform the Commissioner of the accession number given to the deposit by that authority not later than

    • (i) in respect of an application for a patent other than a PCT national phase application, three months after the day on which the authority issues a receipt, and

    • (ii) in respect of a PCT national phase application, the later of three months after the day on which the authority issues a receipt and three months after the national phase entry date of that application;

  • (e) in the case where the depositor is notified under Article 4 of the Budapest Treaty of the inability of the international depositary authority to furnish samples, a new deposit must be made in accordance with that Article; and

  • (f) in the case where a new deposit of the biological material is made with another international depositary authority under Article 4(1)(b)(i) or (ii) of the Budapest Treaty, the applicant or patentee must inform the Commissioner of the accession number given to the deposit by that authority not later than

    • (i) in respect of an application for a patent other than a PCT national phase application, three months after the day on which the authority issues a receipt, and

    • (ii) in respect of a PCT national phase application, the later of three months after the day on which the authority issues a receipt and three months after the national phase entry date of that application.

• Marginal note:PCT national phase application

  (1.1) In respect of an international application that has become a PCT national phase application and that is published by the International Bureau of the World Intellectual Property Organization under Article 21 of the Patent Cooperation Treaty on or before its national phase entry date, the requirement set out in paragraph (1)(b) is considered to be met only if the information referred to in that paragraph was furnished in accordance with the requirements of the Patent Cooperation Treaty before the day on which the international application is published.

• Marginal note:Non-application of subsection 3(1)

  (2) Subsection 3(1) does not apply to the time referred to in paragraph (1)(b).