Budapest System FAQs
A Contracting State of the Budapest Treaty must recognize, for the purposes of patent procedure, the deposit of a microorganism with any "international depositary authority" (IDA), irrespective of whether such authority is within or outside the territory of the said State. Such recognition includes the recognition of the fact and date of the deposit with the IDA and that a sample furnished by the IDA is indeed a sample of the deposited microorganism. In addition to Contracting States, some regional patent organizations (ARIPO, EAPO, EPO and OAPI) recognize the effect of the Budapest Treaty for the purpose of their patent procedures.
Under the Budapest Treaty, there is no definition of the term “microorganism”. In practice, that term is interpreted broadly. It covers all biological material the deposit of which is necessary for complying with the disclosure requirement, particularly in relation to inventions in the food, pharmaceutical, and agricultural industries.
Sufficient disclosure of the invention is a requirement for the grant of patents. Normally, an invention is disclosed in writing by means of a description and drawings. Where an invention involves biological material or the use of it, a description alone or with drawings may not be enough for a person skilled in the art to carry out the claimed invention. Accordingly, a deposit of the biological material with an authorized institution supplements the description and provides a practical means to meet the sufficiency of disclosure requirement in many countries.
Once a biological material is deposited with an IDA for the purposes of the patent procedure, the IDA shall store the biological material in a manner that it is kept viable and uncontaminated. It is also a task of the IDA to provide samples of the deposited biological material to interested parties, in accordance with the Regulations under the Budapest Treaty and national law. Availability of samples of the deposited biological material is important for the proper functioning of the disclosure mechanism under patent law.
Any country party to the Paris Convention for the Protection of Industrial Property may ratify or accede to the Budapest Treaty.
To become party to the Budapest Treaty, an instrument of ratification or accession to the treaty has to be deposited with the Director General of the World Intellectual Property Organization (WIPO). The Treaty takes effect three months after the date on which the State has deposited its instrument of ratification or accession unless a later date has been indicated in the instrument of ratification or accession.
Hosting an IDA is not an obligation under the Budapest Treaty. However, having such an authority in a country will facilitate the deposit of biological materials for local applicants and applicants from the neighboring countries. In particular, local applicants will be able to deal with the authority in their own language, use the local currency and thus avoid dealing with distant authorities, in foreign currencies and in foreign languages.
Having a local authority will also ensure that local applicants do not have to deal with export or import regulations, which would be the case if they had to deposit a biological material with an authority in another country. Moreover, a local IDA will make it easier to access the samples of biological materials that are deposited in the country.