How does the USPTO treat replacement deposits?

The United States Patent and Trademark Office (USPTO) applies a rebuttable presumption of identity between the replacement deposit and the original deposit. This treatment is outlined in MPEP 2407.04, which states: “37 CFR 1.805(e) indicates that the Office will apply a rebuttable presumption of identity between the replacement deposit and an original deposit where a…

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What happens if a biological deposit referenced in a patent application becomes unavailable?

If a biological deposit referenced in a patent application becomes unavailable, the examiner will treat the application as if no deposit existed. According to MPEP 2407.01: “When the Office is so informed or otherwise becomes aware that samples of the deposited material cannot be furnished by the depository, the examiner will treat the application as…

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What are the requirements for making a replacement or supplemental biological deposit?

When making a replacement or supplemental biological deposit, the following requirements must be met: The deposit must meet all the requirements for making an original deposit. It must be necessary to satisfy the requirements for patentability under 35 U.S.C. 112. The biological material must be specifically identified and described in the application as filed. The…

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What happens if a deposit becomes unavailable or contaminated?

If a biological deposit becomes unavailable or contaminated, the patent owner must take action to ensure continued public availability. According to MPEP 2407: “A replacement or supplemental deposit made during the pendency of an application for patent may be made without a certificate of correction […] A replacement or supplemental deposit made in connection with…

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Is there a difference in replacing deposits during patent application versus after grant?

Yes, there is a difference in the flexibility allowed for replacing deposits during the patent application process compared to after the patent has been granted. The MPEP notes: “An applicant may have greater latitude in replacing a deposit during the pendency of an application than after the patent is granted.” This suggests that applicants have…

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Can an applicant replace a biological deposit with a different material in a pending application?

Yes, in a pending application, an applicant can replace a biological deposit with a different material, provided it meets certain conditions. According to MPEP 2407.01: “It should be noted that in a pending application, an applicant need not replace the identical material previously deposited, but may make an original deposit of a biological material which…

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