How can a patent owner correct information about a replacement or supplemental biological deposit?
To correct information about a replacement or supplemental biological deposit, a patent owner must request a certificate of correction. The MPEP specifies: “A replacement or supplemental deposit made in connection with a patent, whether or not made during the pendency of an application for reissue patent or a reexamination proceeding or both, shall not be…
Read MoreWhat are the consequences of not maintaining a valid biological deposit?
Failing to maintain a valid biological deposit can have serious consequences for a patent application or issued patent. According to MPEP 2407.03: “37 CFR 1.805(d) sets forth the Office position that the failure to make a replacement deposit in a case pending before the Office, for example a reissue or reexamination proceeding, where a deposit…
Read MoreWhat happens if a viability test indicates that a biological deposit is not viable?
If a viability test indicates that a biological deposit is not viable, the patent examination process is affected. According to MPEP 2409 and 37 CFR 1.807(c): “If a viability test indicates that the deposit is not viable upon receipt, or the examiner cannot, for scientific or other valid reasons, accept the statement of viability received…
Read MoreWhat happens if a replacement deposit is not made in a pending patent case?
If a replacement deposit is not made in a pending patent case where a deposit is considered necessary to satisfy the requirements of 35 U.S.C. 112, the application or patent will be treated as if no deposit were made. As stated in MPEP 2407.03: “37 CFR 1.805(d) sets forth the Office position that the failure…
Read MoreWhat are the consequences of failing to replace a biological deposit promptly?
Failing to replace a biological deposit promptly can have serious consequences for a patent. The MPEP states: “Failure to diligently replace the deposit and promptly thereafter request a certificate of correction which meets the terms of 37 CFR 1.805(b) and 37 CFR 1.805(c) will cause the patent involved to be treated in any Office proceeding…
Read MoreWhat are the specific conditions for exemption from replacement deposits?
According to MPEP 2407.05, there are specific conditions under which a depository may be exempted from providing replacement deposits of biological materials. The MPEP states: “The conditions are specified in this paragraph as being limited to national security, health or environmental safety reasons.” These conditions can be broken down as follows: National security concerns Health-related…
Read MoreHow does commercial availability affect the need for biological deposits?
Commercial availability of biological materials can significantly affect the need for making or replacing deposits in patent applications. According to MPEP 2407.03: “For example, a replacement deposit would not be required under the circumstances where access to the necessary biological material was established through commercial suppliers.” This statement indicates that if the biological material described…
Read MoreHow does the Budapest Treaty affect the term of deposit for biological materials?
The Budapest Treaty sets international standards for the deposit of biological materials for patent purposes. According to the MPEP, the term of deposit must satisfy the Budapest Treaty requirements, which are: At least 30 years from the date of deposit At least 5 years after the most recent request for a sample The MPEP states:…
Read MoreHow does the Budapest Treaty relate to exemptions from replacement deposits?
The Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure is an international agreement that standardizes the deposit of biological materials for patent purposes. The Manual of Patent Examining Procedure (MPEP) explicitly references this treaty in relation to exemptions from replacement deposits: “See also Article 5 of…
Read MoreHow does the Budapest Treaty affect the viability requirement for biological deposits?
The Budapest Treaty simplifies the viability requirement process for biological deposits in patent applications. According to MPEP 2409: “Under the Budapest Treaty, there is a requirement that the deposit be tested for viability before it is accepted. Thus, a mere statement by an applicant, an authorized representative of applicant or the assignee that the deposit…
Read More