Commonwealth Consolidated Regulations Commonwealth Consolidated Regulations(1) Where the micro - organism is deposited with a prescribed depositary institution, proceedings for breach of an undertaking referred to in paragraph 3.25(4 )( c) may be instituted in a prescribed court by a person who is:
(a) if a patent has not been granted on that patent application -- the applicant; or
(i) a patent has been granted on that patent application; or
(ii) the deposit is effected in relation to a patent;
the patentee of, or an exclusive licensee under, that patent.
(2) In proceedings by an exclusive licensee, the patentee must be a party to the proceedings.
(3) A patentee joined as a defendant in the proceedings by an exclusive licensee is not liable for costs unless the patentee enters an appearance and takes part i n the proceedings.
(4) It is a defence in proceedings for breach of the undertaking given in respect of a micro - organism to which a specification filed in respect of a patent application or patent relates, that when the matters complained of took place the specification did not comply with the requirements referred to in paragraph 6(c) or (d) of the Act.
(5) A defendant may not plead a defence referred to in subregulation (4) unless:
(a) the defendant, before becoming a defendant in the proceedings, notified the Commissioner under paragraph 3.29(1) of the deposit requirement that has ceased to be satisfied; and
(b) the applicant for the patent or the patentee fails to take
the steps referred to in paragraph 41(4 )( b) of the Act within the
appropriate period prescribed by subregulation 3.30(1) for the purposes
of that paragraph.