Questions & Answers

Question

Dear Anderrson,
Hello from Turkey. My question is about Budapest Treaty and patentability. If you want to have a patent for some new strains and your deposit time is 23 January 2009 under Budapest Treaty, is there a deadline for applying for a patent? What is the latest time to apply? In Europe what is the procedure? I will be very appreciated if you answer my questions. Thank you.

Safak Pak

Answer

Dear Safak Pak
Thank you for your question!
To get a patent the invention needs to be possible to repeat. Concerning biological material, such as animal cells or microbiological strains, they may not be available to the public or  they can be difficult to describe in a way that makes it possible to repeat by others. In these cases the patent system have the possibility or even demand for deposition of such biological material at any of the designated institutes. This deposition is regulated in the Budapest Treaty.

In the Swedish Patent Law and the EPO regulations, the procedure regarding depositions according to the Budapest Treaty regulates the time limits from when the patent application is made and when the information regarding the deposition need to be submitted i.e. within 16 month after the filing date ( or priority date if claiming priority from earlier application), see Swedish Patents Decree Section 17 b equivalent to EPO rule 31(2).

The important thing about the time of deposition is that the deposition is made not later than the date of filing  the patent application, see Swedish Patents Act section 8 a equivalent to EPO Rule 31(1)(a).

Sincerely,
Patrick

Question

Hi,
Two days ago I participated in a seminar presented by Hakan Yildirim. He suggested us to ask quesitons about biotechnology to you. Well, I have one.

If microorganisms are isolated from a specific microflora and then new extremophilic proteins were extracted and detected from these microorganisms, is this an invention? Or how can we organize the claims to protect this invention.

Thank you,
Gokcen Gokce

Answer

Hi Gokcen Gokce!
Thank you for your question, the patenting of substances from nature is always an interesting subject!

The mere identification of new proteins is not an invention, but an discovery. However, if the newly identified extremophilic proteins can have a technical use, in other words can be applied to solve a problem, then the proteins may be protected by a patent if they fulfill the normal criterias of novelty and inventive step. The suggested use need to be made probable, preferably through experimentation or a credible theory.

Best Regards
Patrick