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which case publication of any of the details of the patent is prohibited until such time as the ‘prohibition order’ is rescinded.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 However, once the Department of Defence no longer considers the information secret the prohibition order can be rescinded and the patent application is placed into the normal patent system by being advertised accepted and then published in the usual way.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.