1. What requirement on the deposit time for biological materials should be met in China?
When an application relates to a biological material is to be filed before the State Intellectual Property Office (SIPO), the applicant should deposit the biological material at an International Depositary Authority (IDA) before the date of filing, or at least on the date of filing (for an application claiming priority of an earlier application, it should be deposited before or on the priority date).
2. What requirement on the depositary institution should be met in China?
The depositary institution should be those designated by SIPO, i.e. those International Depositary Authorities stipulated in the Budapest Treaty. In particular, there are three International Depositary Authorities in China, two in United States of America, seven in United Kingdom, two in Japan, and four in Republic of Korea, the list thereof may refer to the website http://www.wipo.int/budapest/en/idadb/.
Three International Depositary Authorities in China are: China Center for Type Culture Collection (CCTCC); China General Microbiological Culture Collection Center (CGMCC) and Guangdong Microbial Culture Collection Center (GDMCC).
3. Corresponding documents to be filed
The applicant should submit a certificate of deposit and the certificate of viability provided by the depositary institution to SIPO within four months from the date of filing. The information of the deposit indicated in the certificate of deposit and the certificate of viability should be in consistent with that in the request, including the name and address of the depositary institution, the date on which the sample of the biological material was deposited and the accession number of the deposit, and the scientific name with its Latin name.
4. How to deal with the condition that the depositary institution is not a depositary institution designated by SIPO?
If the depositary institution to which the applicant deposits the biological material is not that designated by SIPO, the applicant should transfer the biological material to the International Depositary Authority as mentioned
If the depositary institution to which the applicant deposits the biological material is not that designated by SIPO, the applicant should transfer the biological material to the International Depositary Authority as mentioned above and deposit it as a deposit for patent program under the Budapest Treaty.
If the applicant initially deposited the biological material to an International Depositary Authority approved by SIPO but with a type of domestic deposit, he/it might only convert the deposit type to an international deposit for patent program under the Budapest Treaty without changing the depositary institution.
It should be noted that, whether it is transferred to the International Depositary Authority for an international deposit, or the deposit type is converted to an international deposit, the international deposit date and the accession number of the deposit will be re-designated according to the date of the transfer or the conversion.
5. The consequence of the deposit date being after the priority date
For an application relating to biological material deposit, if the application claimed a priority, the deposit date for patent program might be on or before the date of filing but after the priority date.
According to relevant provisions in the Guidelines for Patent Examination, for such cases, the applicant shall withdraw the priority request, or declare that the biological material to which the corresponding certificate of deposit relates does not enjoy the priority within a time limit designated by the examiner. If the applicant does not respond to the examiner within the time limit, or the response does not meet the requirement, the corresponding biological material sample shall be deemed as not being deposited.
In view of the above, if a foreign applicant is to file an application about biological material in China after its first domestic filing, the biological material should be deposited in the international depositary institution designated by SIPO on or before the date of first filing (i.e. on or before the priority date) to avoid the deposited biological material not enjoying the priority.