Can I make a biological material deposit after a patent has been issued?

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.

No, you cannot make an original biological material deposit after a patent has been issued. The Manual of Patent Examining Procedure (MPEP) 2406 clearly states:

“Insofar as the rules do not permit post-issuance original deposits, the failure to make an original deposit in an application cannot be cured by filing a reissue application or instituting a reexamination proceeding.”

This means that if you failed to make the necessary deposit during the application process, you cannot rectify this by filing for a reissue or requesting reexamination. The deposit must be made before the patent is granted.

However, there is one exception to this rule. The MPEP notes:

“If an amendment of claims in a reexamination proceeding raises the need for a deposit, an original deposit may be made during the reexamination proceeding.”

This situation is specific to reexamination proceedings where changes to the claims necessitate a new deposit that wasn’t previously required.