New deposit of biological material
If biological material deposited according to Rule 31 ceases to be available from the recognised depositary institution, an interruption in availability shall be deemed not to have occurred if:
a new deposit of that material is made in accordance with the Budapest Treaty
a copy of the receipt of that new deposit issued by the depositary institution is forwarded to the EPO within four months of the date of the new deposit, stating the number of the European patent application or patent.
The non-availability may occur because, for example:
the material has degraded such that it is no longer viable, or
the authority with which the original deposit was made no longer qualifies for that kind of material, either under the Budapest Treaty or under bilateral agreements with the EPO.
In either case (a) or (b) above, a new deposit must be made within three months of the depositor's being notified of the non-availability of the organism by the depositary institution (Art. 4(1)(d) Budapest Treaty). This is subject to the exception, where:
the non-availability of the deposit is for the above reason (b), and
the depositor does not receive the above notification from the depositary institution within six months after the date on which it is published by the International Bureau that the depositary institution is no longer qualified in respect of the biological material in question.
In this exceptional case, the new deposit must be made within three months from the date of the said publication by the International Bureau (Art. 4(1)(e) Budapest Treaty).
If, however, the original deposit was not made under the Budapest Treaty, but rather at a depositary institution recognised by the EPO by virtue of a bilateral agreement, the above-mentioned six-month period is calculated from the date when the EPO publishes the fact that the depositary institution in question is no longer qualified to accept deposits of the biological material in question under that bilateral agreement.