What is the significance of a Budapest Treaty deposit for biological materials in patent applications?

A Budapest Treaty deposit can be significant for biological materials in patent applications, but it doesn’t automatically ensure that the material is considered known and readily available. According to MPEP 2404.01:

“Even a deposit made under the Budapest Treaty and referenced in a United States or foreign patent document would not necessarily meet the test for known and readily available unless the deposit was made under conditions that are consistent with those specified in these rules.”

The key conditions include:

• All restrictions on accessibility must be irrevocably removed by the applicant upon granting of the patent (with one possible exception under 37 CFR 1.808(b)).
• The deposit must have been necessary to overcome a rejection under 35 U.S.C. 112.
• The record must clearly indicate that the deposit was made under the Budapest Treaty and meets all accessibility requirements.

Therefore, while a Budapest Treaty deposit can be valuable, it’s important to ensure it meets all the specific requirements outlined in the USPTO rules to be considered known and readily available.

To learn more:

• biological material
• patent application
• Budapest Treaty
• deposit
• public accessibility