Paragraph 3 Availability of cultures to experts
Subject to paragraph (2A) below, where, before the preparations for publication under section 16 of an application for a patent have been completed, the applicant gives notice to the comptroller on Patents Form 8A/77 of his intention that a sample of the micro-organism should be made available only to an expert, the provisions of this paragraph shall have effect.
The comptroller—
shall publish with the application notice that the provisions of this paragraph have effect; and
notwithstanding paragraph 2 above, shall not, until the patent is granted or the application has been withdrawn, has been taken to be withdrawn, has been treated as having been withdrawn, has been refused or is treated as having been refused, issue any certificate authorising release of a sample otherwise than under this paragraph.
Where, for the purpose set out in sub-paragraph (1) above, an applicant for an international application for a patent (UK) gives notice in writing to the International Bureau under rule 13bis.3 of the Regulations under the Patent Co-operation Treaty before the technical preparations for international publication of the application are complete of his intention that a sample of the micro-organism should be made available only to an expert, he shall be treated by the comptroller for the purposes of this paragraph as having complied with the conditions in sub-paragraph (1) above and sub-paragraph (2)(a) above shall not apply.
Any person wishing to have a sample of the micro-organism made available (“the requester”)—
shall apply to the comptroller on Patents Form 8/77 (which shall be filed in duplicate together, in the case of a micro-organism of which a culture is deposited under the Budapest Treaty with an international depositary authority, with the form provided for by the Regulations under that Treaty) nominating the person (“the expert”) to whom he wishes the sample to be made available; and
shall at the same time file undertakings by the expert as set out in sub-paragraph (3) of paragraph 2 above in accordance with the provisions of that paragraph.
The comptroller shall send a copy of Patents Form 8/77 filed under sub-paragraph (3) above to the applicant for the patent and shall specify the period within which the applicant may object, in accordance with sub-paragraph (5) below, to a sample of the micro-organism being made available to the expert.
Unless, within the period specified by the comptroller under sub-paragraph (4) above (or within such longer period as the comptroller may, on application made to him within that period, allow), the applicant for the patent sends notice in writing to the comptroller that he objects to a sample of the micro-organism being made available to the expert and gives his reasons for his objection, the comptroller shall send a copy of any form lodged with him under sub-paragraph (3)(a) above and of his certificate authorising the release of the sample—
to the applicant for the patent,
to the depositary institution concerned,
to the requester, and
to the expert.
Where, in accordance with sub-paragraph (5) above, the applicant for the patent sends notice to the comptroller of his objection to the issue of a certificate in favour of the expert, the comptroller—
shall decide, having regard to the knowledge, experience and technical qualifications of the expert and to any other factors he considers relevant, whether to issue his certificate in favour of the expert; and
if he decides to authorise the release of the sample to the expert, shall send to the persons referred to in sub-paragraph (5) above a copy of any form lodged with him under sub-paragraph (3)(a) above and of his certificate authorising the release of the sample to the expert.
Before making a decision in accordance with sub-paragraph (6) above, the comptroller shall afford the applicant and the requester the opportunity of being heard.
If the comptroller decides under sub-paragraph (6) above not to issue his certificate in favour of the expert, the requester may, by notice in writing to the comptroller and the applicant, nominate another person as the expert for the purposes of this paragraph; and the comptroller shall give such directions as he shall think fit with regard to the subsequent procedure.
Nothing in this paragraph shall affect the rights under section 55 of any government department or any person authorised in writing by a government department.