What are the consequences of not making a biological deposit before patent allowance?
Failing to make a required biological deposit before patent allowance can have serious consequences. According to MPEP 2407.01:
“Failure to make the required deposit of biological material will result in abandonment of the application for failure to prosecute.”
This means that if an applicant does not make the necessary biological deposit by the time the application is otherwise in condition for allowance, the USPTO will consider the application abandoned. Abandonment effectively terminates the application process, and the invention will not receive patent protection.
To avoid this outcome, applicants should:
- Carefully assess whether a biological deposit is required for their invention
- Plan to make the deposit well before the application is in condition for allowance
- Ensure all deposit-related requirements, including those in 37 CFR 1.809, are met
If an application is abandoned due to failure to make a required deposit, the applicant may need to file a petition to revive the application, which can be costly and time-consuming.
To learn more: