Can a biological material deposit be referenced in a patent application even if it’s not required?

This page is an FAQ based on guidance from the Manual of Patent Examining Procedure. It is provided as guidance, with links to the ground truth sources. This is information only: it is not legal advice.

Yes, a biological material deposit can be referenced in a patent application even if it’s not required to satisfy the statutory requirements for patentability. According to MPEP 2404:

“A reference to a deposit may be included in a specification even though the deposit is not required to satisfy the requirements of 35 U.S.C. 112.“

This means that inventors or applicants may choose to reference a deposit in their application for various reasons, such as:

• Providing additional information about the invention
• Offering an alternative mode of operation
• Describing a preferred embodiment

However, it’s important to note that the inclusion of such a reference does not automatically imply that the deposit is necessary for patentability.