Ordinance On The Deposit Of Biological Material In The Patent And Utility Model Procedure

Original Language Title: Verordnung über die Hinterlegung von biologischem Material in Patent- und Gebrauchsmusterverfahren

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Read the untranslated law here: http://www.gesetze-im-internet.de/biomathintv/BJNR015100005.html

Regulation concerning the deposit of biological material in the patent and utility model procedures (organic material deposit regulation BioMatHintV) BioMatHintV Ausfertigung date: 24.01.2005 full quotation: "organic material deposit regulation by January 24, 2005 (BGBl. I p. 151)" footnote (+++ text detection from: 28.2.2005 +++) input formula on the basis of § 34 paragraph 8 of the Patent Act as amended by the notice of December 16, 1980 (BGBl. 1981 I p. 1), last by article 7 No. 16 letters b and c of the Act of 13 December 2001 (BGBl. I p. 3656) is has been modified , and § 4 section 7 of the utility models act as amended by the notice of August 28, 1986 (BGBl. I p. 1455), most recently by article 8 No. 1 letter a, c, and d of the law of 13 December 2001 (BGBl. I p. 3656) has been changed, each in conjunction with § 1 para 2 of the DPMA regulation by April 1, 2004 (BGBl. I p. 514) , the German patent and trade mark office prescribed: § 1 necessity of the deposit; an invention relates to biological material (1) biological material, which is not open to the public and the patent or utility model application not so can be described, that a skilled person cannot carry out this invention then, or the invention involves the use of such material, so this description applies to the application of the patent or utility model right as only enough, if 1 the biological material at the latest at the date of the application or , if a priority claim has been taken, is deposited at the priority date with a recognised depositary institution, 2. the relevant information contains the registration, which are known to the applicant with regard to the characteristics of the deposited biological material, and 3 in the notification the depositary institution and the file number of the deposit are given.
(2) biological material within the meaning of this regulation is a material which contains genetic information and reproduce itself or can be reproduced in a biological system.
(3) is the biological material already by a third party have been deposited, so requires no further deposit, where the feasibility of another invention for the period set out in section 7 is ensured by the first deposit.

§ 2 recognised depositary institutions recognised are the international depositary authorities, that this status pursuant to article 7 of the Budapest Treaty of 28 April 1977 on the international recognition of the deposit of microorganisms for the purposes of patent procedure (BGBl. 1980 II p. 1104) purchased in its currently valid version, and scientifically recognized entities, which offer the guarantee of a proper storage and publication of samples in accordance with this regulation and law , are independent economically and organizationally from the applicant and the applicant.

Article 3 filing of the file number of the deposit (1) is a unique mapping of the application to the deposited biological material already due to the registration documents possible, so the file number of the deposit can be submitted 1. If utility model applications within one month after the date of filing;
2. when patent applications within a period of 16 months after the date of filing or, if priority has been claimed, from the priority date. The deadline is considered to be complied with, if the filing up to § 32 para 5 of the patent law has been assigned with the completion of the technical preparations for the publication of the disclosure after.
(2) the time limit for the separate furnishing ends not later than one month after the notification to the applicant that a right of access to the file is made up according to § 31 para 1 sentence 1 of the Patent Act, or in the case of the premature disclosure at the latest with the Declaration of the applicant according to § 31 para 2 No. 1 of the Patent Act.

§ Has the deposited biological material in the depository institution as of the date of the application to the release of samples in accordance with article 5 for the retention period set out in section 7 4 release (1) the applicant by an irrevocable Declaration unreservedly to to provide. In the case of a third-party deposit, the applicant must demonstrate through submission of documents that the deposited biological material has been made by the applicant pursuant to sentence 1 available.
(2) the applicant has to commit themselves irrevocably to the depositary, to make a new deposit required expectant pursuant to § 9, or to perform by a third party.

§ 5 access to biological material (1) the deposited biological material is by issuing a sample upon request made available 1 up to the publication of disclosure according to § 32 para 5 of the patent law or until the registration of the utility model only a) for the applicant, b) for the German patent and trade mark Office on request, or c) for the applicant or a third parties, if this due to a decision of the German of patent and trade mark Office under section 31 para 1 sentence 1 of the Patent Act or § 8 Par. 5 sentence 2 of the utility model act, is entitled on the basis of the decision of a court to obtain a sample or the filer in writing; consented to the delivery of the sample
2. from the publication of disclosure according to § 32 para 5 of the patent law and the grant of the patent for everyone; at the request of the applicant, access to the deposited biological material is made only by issuing a sample to one of the applicants named independent experts;
3. after the grant of the patent or a supplementary protection certificate or after the registration of the utility model irrespective of subsequent revocation or a declaration of invalidity of the patent or of the supplementary protection certificate or a later cancellation of the use pattern for everyone.
(2) for rejection or withdrawal of the application, which is letter c in paragraph 1 No. 1 and no. 2 controlled access to the deposited biological material at the request of the applicant for a period of 20 years from the day of registration only by issuing a sample to one of the applicants named independent experts made.
(3) as an expert may 2 and paragraph 2 referred to in paragraph 1 named No. 1 be any natural person, the applicant and the applicant have agreed;
2. any natural person who is recognized by the President of the German of patent and Trademark Office as an expert.
(4) the claims of the applicant pursuant to paragraph 1 No. 2 and paragraph 2 are to be at the German patent and Trademark Office and can only to be submitted at the time, to apply the technical preparations for the publication of disclosure according to § 32 para 5 of the patent law, or for the registration of the utility model as completed.
(5) the request for access to biological material can be set using the standard form for this purpose issued at the German patent and Trademark Office. The German patent and Trademark Office confirmed on the form that a patent or a utility model application has been submitted, which makes reference to the deposit of biological material, and that the applicant or the expert designated by him entitled to release of a sample of this material has. The application must be submitted even after the grant of the patent or supplementary protection certificate or after the registration of the utility model at the German patent and Trademark Office.
(6) the German patent and Trademark Office sent the depositary institution and the applicant or right holder and in the case of third-party deposit is also the applicant a copy of the application of paragraph 5 sentence 2 provided confirmation.

§ 6 Declaration of commitment (1) a sample is only issued if the applicant committed itself to the applicant and in the case of third-party deposit to the depositor, for the duration of the effect of all rights, which refer to the deposited biological material 1 third parties to access any sample of the deposited biological material or a material derived from and 2nd no sample of the deposited biological material or a material derived therefrom to other than to use for experimental purposes , unless the applicant for or holder of the right, in the case of third-party deposit in addition the applicant expressly waive such a commitment. The obligation to use the biological material for experimental purposes only is obsolete, as far as the applicant uses this material due to a compulsory license or Government use order.
(2) the sample to an independent expert is published, so has this to submit the Declaration referred to in paragraph 1. To the expert, the applicant as third parties within the meaning of paragraph 1 is to see no. 1.

§ 7 retention of the deposited biological material is five years off to keep the last request for delivery of sample, but at least five years beyond the legally certain maximum protection lifetime of all rights, which refer to the deposited biological material.

§ 8 deposit according to the Budapest Treaty
In the case of a deposit under the Budapest Treaty the release, the release of samples, the Declaration of commitment and the retention period governed exclusively by the regulations of the Budapest Treaty and of this judgment execution order (BGBl. 1980 II S. 1104, 1122) in their respectively valid version.

§ 9 new deposit (1) no longer accessible is the biological material deposited in accordance with the recognised depositary institution, is permitted and on request the depositary to make a new deposit under the same conditions as those of the Budapest Treaty.
(2) the biological material is again within a period of three months after the request of the depositary referred to in paragraph 1.
(3) one is any new deposit of the depositor to attach signed declaration, confirming that the once again deposited biological material is the same as the originally deposited material.

Article 10 cooperation with the German patent and Trademark Office the German patent and Trademark Office gives the depositary authorities all the information that are necessary for the fulfilment of their tasks.

§ 11 transitional arrangements, this Regulation shall not apply to patent or utility model applications filed before its entry into force.

Article 12 entry into force this regulation enters into force on February 28, 2005.