MPEP § 2404.02 — Biological Material That Can Be Made or Isolated Without Undue Experimentation (Annotated Rules)

§2404.02 Biological Material That Can Be Made or Isolated Without Undue Experimentation

USPTO MPEP version: BlueIron's Update: 2025-12-31

This page consolidates and annotates all enforceable requirements under MPEP § 2404.02, including statutory authority, regulatory rules, examiner guidance, and practice notes. It is provided as guidance, with links to the ground truth sources. This is information only, it is not legal advice.

Biological Material That Can Be Made or Isolated Without Undue Experimentation

This section addresses Biological Material That Can Be Made or Isolated Without Undue Experimentation. Contains: 3 requirements.

Key Rules

Topic

When Deposit Not Required

2 rules
MPEP GuidanceRequiredAlways
[mpep-2404-02-e75e2debdee1e3f0a1bb3200]
Deposit Not Needed for Isolated Materials Without Undue Experimentation
Note:
Applicant can show that a deposit is not necessary if specific biological materials required to practice the invention can be made or isolated without undue experimentation.

Applicant may show that a deposit is not necessary even though specific biological materials are required to practice the invention if those biological materials can be made or isolated without undue experimentation. Deposits may be required to support the claims if an isolation procedure requires undue experimentation to obtain the desired biological material. Ex Parte Jackson, 217 USPQ 804 (Bd. App. 1982). No deposit is required, however, where the required biological materials can be obtained from publicly available material with only routine experimentation and a reliable screening test. Tabuchi v. Nubel, 559 F.2d 1183, 194 USPQ 521 (CCPA 1977); Ex Parte Hata, 6 USPQ2d 1652 (Bd. Pat. App. & Int. 1987).

Jump to MPEP SourceWhen Deposit Not RequiredWhen Deposit is RequiredDeposit of Biological Materials
MPEP GuidanceRequiredAlways
[mpep-2404-02-793089ace5ac281f26da36ef]
No Deposit When Routinely Obtainable
Note:
A deposit is not required if the biological materials can be obtained from publicly available sources with routine experimentation and a reliable screening test.

Applicant may show that a deposit is not necessary even though specific biological materials are required to practice the invention if those biological materials can be made or isolated without undue experimentation. Deposits may be required to support the claims if an isolation procedure requires undue experimentation to obtain the desired biological material. Ex Parte Jackson, 217 USPQ 804 (Bd. App. 1982). No deposit is required, however, where the required biological materials can be obtained from publicly available material with only routine experimentation and a reliable screening test. Tabuchi v. Nubel, 559 F.2d 1183, 194 USPQ 521 (CCPA 1977); Ex Parte Hata, 6 USPQ2d 1652 (Bd. Pat. App. & Int. 1987).

Jump to MPEP SourceWhen Deposit Not RequiredWhen Deposit is RequiredDeposit of Biological Materials
Topic

Deposit of Biological Materials

1 rules
MPEP GuidanceRequiredAlways
[mpep-2404-02-4c0aaba23121eb4ca243ec7c]
Deposit Required for Undue Experimentation
Note:
A deposit is required if isolating the desired biological material requires undue experimentation, as per Ex Parte Jackson.

Applicant may show that a deposit is not necessary even though specific biological materials are required to practice the invention if those biological materials can be made or isolated without undue experimentation. Deposits may be required to support the claims if an isolation procedure requires undue experimentation to obtain the desired biological material. Ex Parte Jackson, 217 USPQ 804 (Bd. App. 1982). No deposit is required, however, where the required biological materials can be obtained from publicly available material with only routine experimentation and a reliable screening test. Tabuchi v. Nubel, 559 F.2d 1183, 194 USPQ 521 (CCPA 1977); Ex Parte Hata, 6 USPQ2d 1652 (Bd. Pat. App. & Int. 1987).

Jump to MPEP SourceDeposit of Biological MaterialsWhen Deposit Not RequiredWhen Deposit is Required

Citations

Primary topicCitation
Deposit of Biological Materials
When Deposit Not Required
Ex Parte Hata, 6 USPQ2d 1652 (Bd. Pat. App. & Int. 1987)
Deposit of Biological Materials
When Deposit Not Required
Tabuchi v. Nubel, 559 F.2d 1183, 194 USPQ 521 (CCPA 1977)

Source Text from USPTO’s MPEP

This is an exact copy of the MPEP from the USPTO. It is here for your reference to see the section in context.

BlueIron Last Updated: 2025-12-31