Requirements to be Fulfilled If Invention Uses Biological Material

You might find this article useful if you have questions like what is Budapest treaty, is India also member to the treaty, if my invention uses biological material, what obligations I have to fulfil under this treaty, what are the timelines to comply with those.

Budapest treaty is the international treaty on the recognition of the deposit of micro-organisms for the purposes of patent procedure signed at Budapest (capital of Hungary). It was signed on 28th day of April, 1977 and has been amended and modified since then. India is member of this treaty with effect from December 17, 2001. If the invention uses biological material and it is not already known, then it has to be submitted at the International Depository Authority not later than the date of making the patent application in India and a reference thereof shall be made in the specification within the period of three months from the date of filing of the application. The material is deposited so that every complete specification shall fully and particularly describe the invention and its operation or use and the method by which it is to be performed and shall also disclose the best method of performing the invention. Applicant shall also disclose in the specification the source and geographical origin of the biological material. After the deposit has been made, applicant shall in the specification include name, address of the depository institution and the date and number of the deposit of the material at the institution. In India, there is one International Depository Authority at Chandigarh which is known as Institute of Microbial Technology (IMTECH) and other is at Microbial Culture Collection (MCC), Pune. Access to the material is available in the depository institution only after the date of the application of patent in India or if a priority is claimed after the date of the priority. One can also refer to the Public Notice dated July 02, 2014, made available by Indian Patent Office (IPO) regarding the same. If the invention is related to biological material obtained from India, applicant needs to add one declaration in form 1. The declaration is ‘The invention as disclosed in the specification uses the biological material from India and the necessary permission from the competent authority shall be submitted by me before the grant of the patent to me.’ Applicant also needs to fulfil the requirement of section 6 of the National Biodiversity Act, 2002, which makes it mandatory for the applicant to take permission of the National Biodiversity Authority before sealing of the patent, if invention of the patent application uses biological material.

Legal basis: Section 10 (4) (ii) (A), (B), (C) and (D) of the Patents Act, 1970 and Rule 13 (8) of the Patents Rules, 2003, form 1 under Indian Patents Act, 1970 and Section 6 of the National Biodiversity Act, 2002.

About the Author: Swapnil Patil, Patent Associate at Khurana & Khurana, Advocates and IP Attorneys and can be reached at: swapnil@khuranaandkhurana.com.

Leave a Reply

Your email address will not be published. Required fields are marked *

twelve + 15 =

Archives

  • March 2021
  • February 2021
  • January 2021
  • December 2020
  • November 2020
  • October 2020
  • September 2020
  • August 2020
  • July 2020
  • June 2020
  • May 2020
  • April 2020
  • March 2020
  • February 2020
  • January 2020
  • December 2019
  • November 2019
  • October 2019
  • September 2019
  • August 2019
  • July 2019
  • June 2019
  • May 2019
  • April 2019
  • March 2019
  • February 2019
  • January 2019
  • December 2018
  • November 2018
  • October 2018
  • September 2018
  • August 2018
  • July 2018
  • June 2018
  • May 2018
  • April 2018
  • March 2018
  • February 2018
  • January 2018
  • December 2017
  • November 2017
  • October 2017
  • September 2017
  • August 2017
  • July 2017
  • June 2017
  • May 2017
  • April 2017
  • March 2017
  • February 2017
  • January 2017
  • December 2016
  • November 2016
  • October 2016
  • September 2016
  • August 2016
  • July 2016
  • June 2016
  • May 2016
  • April 2016
  • March 2016
  • February 2016
  • January 2016
  • December 2015
  • November 2015
  • October 2015
  • September 2015
  • August 2015
  • July 2015
  • June 2015
  • May 2015
  • April 2015
  • March 2015
  • February 2015
  • January 2015
  • December 2014
  • November 2014
  • October 2014
  • September 2014
  • August 2014
  • July 2014
  • June 2014
  • May 2014
  • April 2014
  • March 2014
  • February 2014
  • January 2014
  • December 2013
  • November 2013
  • October 2013
  • September 2013
  • August 2013
  • July 2013
  • June 2013
  • May 2013
  • April 2013
  • March 2013
  • February 2013
  • January 2013
  • December 2012
  • November 2012
  • September 2012
  • August 2012
  • July 2012
  • June 2012
  • May 2012
  • April 2012
  • March 2012
  • February 2012
  • January 2012
  • December 2011
  • November 2011
  • October 2011
  • September 2011
  • August 2011
  • July 2011
  • June 2011
  • May 2011
  • April 2011
  • March 2011
  • February 2011
  • January 2011
  • December 2010
  • September 2010
  • July 2010
  • June 2010
  • May 2010
  • April 2010