Trilateral Project 24.1-Biotechnology 214

In the context of this question, it is not entirely clear what is meant by re-deposit of the microorganism after the application was filed.

According to the EPC, a culture has to be deposited under the Budapest Treaty not later than the filing of the application, and the depositary institution and the file number of the culture deposit have to be submitted to the EPO not later than 16 months after the date of filing of the application. If these conditions are not met, the deposit will not be recognized by the EPO as overcoming an existing lack of sufficiency of disclosure.

Where the European patent application claims the priority of a first national application and a deposit has been made with an International Depositary Authority but under the national legislation, then a conversion of the deposit into a Budapest Treaty deposit is allowable; this conversion must be made not later than the filing date of the European patent application and the Budapest Treaty accession number be submitted not later than the expiry of 16 months from the priority date.

The EPO provides for a re-deposit of microorganisms only if a microorganism deposited in accordance with the Budapest Treaty ceases to be available from the institution with which it was deposited because (a) the microorganism is no longer viable or (b) for any other reason the depositary institution is unable to supply samples, and if the microorganism has not been transferred to another depositary institution recognised by the EPO, from which it continues to be available. A copy of the receipt of the new deposit is then issued by the institution and forwarded to the EPO which will take the receipt to the file. However, such cases have so far never occurred.