1. When Must the Material Be Deposited?

For an application involving biological material filed with SIPO, the material must be deposited with an International Depositary Authority (IDA) no later than the filing date. If priority is claimed, the deposit must be made no later than the priority date.

2. Which Depositary Institutions Are Accepted?

The institution must be designated by SIPO, namely an IDA under the Budapest Treaty. At the time of the article, there were three in China, two in the United States, seven in the United Kingdom, two in Japan and four in South Korea. The list was available at http://www.wipo.int/budapest/en/idadb/.

The three Chinese institutions were the China Center for Type Culture Collection (CCTCC), the China General Microbiological Culture Collection Center (CGMCC) and the Guangdong Microbial Culture Collection Center (GDMCC).

3. Required Documents

Within four months of filing, the applicant must submit the deposit certificate and viability certificate issued by the depositary institution. Their information must match the request, including the institution’s name and address, the deposit date, accession number and scientific name, including its Latin name.

4. What If the Initial Deposit Is Not an Accepted International Deposit?

If the institution is not designated by SIPO, the material must be transferred to an accepted IDA and deposited for patent purposes under the Budapest Treaty.

If the material is already at an accepted IDA but was deposited as a domestic deposit, it may be converted to an international deposit for patent purposes under the Budapest Treaty without changing institutions.

Whether the material is transferred or the deposit converted, a new international deposit date and accession number will be assigned by reference to the transfer or conversion date.

5. What If the Deposit Date Falls after the Priority Date?

The international patent deposit may have been made by the Chinese filing date but after the claimed priority date. Under the Guidelines, the applicant must then withdraw the priority claim or declare that the biological material covered by the certificate does not enjoy that priority, within the examiner’s specified period.

If the applicant fails to respond in time or the response does not meet the requirement, the biological material is deemed not to have been deposited.

6. Practical Point

A foreign applicant intending to file in China after a first domestic application should arrange the accepted international deposit no later than the first filing date, which becomes the priority date, to preserve priority for the deposited material.