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