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How to get a European patent

 
 
Guide for Applicants - Part 1 - Table of Contents  
C. Preparing and filing a European patent application B. Patentability D. The European patent grant procedure  
II. Presenting your invention I. Formal requirements III. Filing European patent applications  
Biotechnology applications Description Claims  
(b) Depositing biological material to supplement the description (a) Nucleotide and amino acid sequences    

(b)

Depositing biological material to supplement the description


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If your invention involves the use of or concerns biological material that is not available to the public and cannot be described in your European patent application in such a way that it can be carried out by a skilled person, you must deposit a sample of this biological material with a recognised depositary institution no later than at the date of filing.

Art. 53(b), 83
R. 31-34
Guid. A-IV, 4
Guid. C-II, 6
OJ 1986, 269, amended by

OJ 1991, 461
OJ 1996, 390, 596




The recognised depositary institutions are the international depositary authorities under the Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure and a number of other institutions designated by the President of the EPO. A full list of recognised depositary institutions is published once a year in the April issue of the EPO's Official Journal; the Official Journal also publishes changes to the list as they occur, and any other relevant information.

R. 33(6)
OJ (April issue)



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The application as filed must also give any relevant information that is available to you on the characteristics of the biological material.

R. 31(1)(b)
Guid. C-II, 6.3




If the biological material has been deposited by someone else, you must state the depositor's name and address in your application and submit documents satisfying the EPO that the depositor has authorised you to refer to the deposited biological material in your application and has given his unreserved and irrevocable consent to the deposited material being made available to the public in accordance with Rule 33.

R. 31(1)(d)



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Lastly you must state your chosen depositary institution and the accession number of the deposited biological material, as a rule within sixteen months after the date of filing or, if you have claimed priority, after the earliest priority date. If any of these requirements is not satisfied, the biological material in question cannot be considered as having been disclosed pursuant to Article 83 by way of reference to the deposit. Please refer to the Guidelines for Examination (C-II, 6.3) for further details.

R. 31(1)(c), (2)



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You should also ensure that you complete sections 34 to 37 of the Request for Grant ("Biological material"). These are designed to alert the EPO that the application refers to biological material deposited under Rule 31 and to enable it to draw your attention to any deficiencies before the time limits laid down in Rule 31(2) expire.

Guid. A-IV, 4.2



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From the date of publication of the European patent application (see point 150), the deposited material is available to anyone on request, but only if the requester makes certain undertakings to the applicant or proprietor regarding restrictions on the transmission and use of the material.

R. 33




Until the technical preparations for publication of your application are deemed to be complete (see point 149), you may inform the EPO that, for a certain period, the only way the biological material can be accessed is by the issue of a sample to an expert. This may be an expert appointed by mutual agreement between you and the requester, or a person chosen by the requester from a list of experts recognised by the President which is published in the Official Journal. The "expert" option is mentioned in the published European patent application.

R. 32

Guid. A-VI, 1.1, 1.3
OJ 1992, 470



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Requests for the issue of samples of biological material deposited under Rule 33 must be submitted on forms obtainable free of charge from the EPO. These forms can also be downloaded from the EPO website (www.epo.org). The completed forms must be sent to the EPO, which certifies them and transmits them to the competent depositary institution.

R. 33(4), (5)