To Patent Agencies and Depositary Institutions,
In implementing Rule 25 of the Implementing Regulations
of the Patent law requiring that deposits
of micro-organisms be made for the purposes of
patent procedures, some questions have been raised
by both domestic and foreign applicants over the
past few years. Based on the principle of not
going against the provisions of the Patent Law,
in order to further carry out the policy of opening
up in patent work, align our requirements for
the deposit of micro-organisms with international
practices as far as it can be, and to clarify
the meaning of the relevant provisions for the
convenience of our domestic and foreign applicants,
we hereby give the following notice:
1. Where any micro-organism which is commercially
available to the public, it is not required
to be deposited.
2. Where any micro-organism, deposited with a
depositary institution designated by the patent
offices of various countries or the international
patent organizations for the purpose of patent
procedures, is published in the patent Gazette
or granted patent right before the priority date
or the filing date of the patent application concerning
the same micro-organism in China, it is not required
to be deposited.
3. Apart from the two provisions mentioned
above, any micro-organism which is possessed
by individuals or entities, deposited with a
depositary institution for the purposes other
than the patent procedures, not to be supplied
to the public or not available to the public
before the filing date (or the priority date),
such as micro-organisms obtained by ways of
selection, mutation or DNA recombination etc.,
shall be deposited.
According to these provisions, where no deposit
has been made in filing a patent application
involving micro-organisms, the applicant
shall submit the catalogue of commodities concerning
the micro-organisms or the certificate (or its
copy) proving the date of publication or grant
of patent relating the micro-organism in the
foreign Patent Gazette. Where no foreign certificate
can be submitted, the applicant is required
to deposit the micro-organism concerned.
This notice shall enter into force from the
date of its issuance. For any other provision
contradicting with this notice, the provisions
of this notice shall prevail.
For pending application involving micro-organisms
filed before the issuance of this notice, deposits
may be made according to this notice.
After the payment of the prescribed fees, and
where the required formalities have been gone
through., the application may retain its original
filing date. For patent applications involving
micro-organisms filed after the date of the
issuance of this notice, deposits of micro organisms
shall be handled in accordance with the relevant
provisions of the Patent Law and its Implementing
Regulations, no amendment is allowed so far
as formalities for deposit of micro-organisms
are concerned..
Issuance Date: June 6th, 1990.
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