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Patent applications are normally published, and the
information in them made publicly available, eighteen months from
the earliest priority date. However, the patent system in Australia
empowers the Government to deem a patent as SECRET, in which case
publication of any of the details of the patent is prohibited until
such time as the 'prohibition order' is
rescinded.
In Australia, the Commissioner of Patents can order the
prohibition of publication of all information in relation to a
patent application and from that point IP Australia will not make
any information about the filing public. The mechanism for invoking
the order can vary; typically the Department of Defence will make a
request to impose a prohibition order in respect of a particular
patent application. Alternatively, IP Australia may consider that a
patent application discloses information that may be SECRET
according to the Department of Defence information classification
system. IP Australia will then make that application available to
the Department of Defence for assessment and, if any part of that
disclosure meets the relevant criteria, a prohibition order is
placed on the application.
Once a prohibition order is placed on an application it will be
dealt with in accordance with the requirements of the Act. An
Examiner with security clearance will examine the specification to
determine whether it is in order for allowance, and then issue an
Examination Report or a Notice of Allowance if allowable. However,
from that point on the application is suspended in the application
phase and is not processed further. Furthermore, whilst the
prohibition order remains in place, publication or communication of
any of the subject matter of the patent application is prohibited
or restricted, thereby effectively preventing commercialisation of
the invention.
The period of the prohibition order may be as long as the
potential life of the patent, in which case the patent will never
be enforceable. However, once the Department of Defence no longer
considers the information secret the prohibition order can be
rescinded and the patent application is placed into the normal
patent system by being advertised accepted and then published in
the usual way. If there is a commercial application of the
previously classified patent, it will then be possible to exploit
the value of the patent during its remaining life.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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