THE BUDAPEST TREATY:
CODE OF PRACTICE FOR IDAs

INTRODUCTION

Patent law requires the public disclosure of all relevant details pertaining to an invention. Written descriptions and drawings are normally adequate and sufficient for the purpose of seeking patent protection, but this is not the case when the invention involves e.g. microorganisms. To rectify such cases, the deposit of the biological material within an officially recognized culture collection was deemed necessary for the patenting procedure.

This principle was endorsed in the Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure. Concluded on April 28, 1977, and enacted on August 19, 1980, the Budapest Treaty (BT) acknowledges that, for all signatory States, a deposit made with one of the 'International Depositary Authorities, IDAs' (i.e. a culture collection recognised as such by the World Intellectual Property Organization, WIPO) is sufficient for the purpose of their respective patent procedure(s).

While the Budapest Treaty (BT) and its Regulations constitute a sound basis for delimiting the duties and responsibilities of culture collections with IDA status, it was stated from the beginning by representatives of the World Federation for Culture Collections (WFCC) that the BT did not always formulated explicit solutions for all circumstances. This issue was newly raised at the annual meeting of the European Culture Collections' Organization (ECCO) in Slovenia (July 3-4, 1995). Participants felt that the BT is open to interpretation and each IDA maintains its own procedures. In order to harmonize the way IDAs resolve certain issues, it was decided to compile an inventory of the procedures applied by IDAs.

The Belgian Coordinated Collections of Microorganisms, BCCM^TM was mandated to coordinate this initiative. Responses to a questionnaire sent in July 1995 to all ECCO members with IDA status were reviewed and summarized in January 1996.

A workshop was held in February 1996 in Brussels to discuss the replies (Annex 1: List of participants). Separate working groups were established to collect additional pertinent information about the day to day operations of IDAs (Annex 2: Working group coordinators).

A second workshop held in Veldhoven, August 1996 during the meeting of the World Federation for Culture Collections (WFCC) was used as an opportunity to solicit the representatives from non-European IDAs for their comments and suggestions (Annex 3: List of participants).

Experts with the World Intellectual Property Organization (WIPO, Geneva) and the European Patent Office (EPO, Munich) were informed about this initiative and contributed other valuable information.

The resulting Code of Practice for IDAs aims to ensure, as far as opportune, that all IDAs apply similar principles and procedures for the handling of deposits. Ultimately, this coordination is advantageous for depositors, and it confirms the intent of the BT to harmonize the requirements for patent deposits.

The Code of Practice summarizes the points on which a minimal consensus exists among IDAs and provides practical guidelines for dealing with unclear cases or situations in the patent deposit procedure.
It should be remarked that this Code of Practice is not final. It can always be updated, clarified or extended if necessary.

The purpose of this Code of Practice is not to deny the particular identity or policy of any IDA. Each IDA may impose additional requirements in order to comply with internal or national regulations.

Note: Abbreviations

NB. The term "microorganism" is not defined in the BT. It may be interpreted in a broad sense. Whether an entity is technically a microorganism matters less in practice than whether the deposit of that entity is necessary for the purposes of disclosure. For example, tissue cultures and plasmids can be deposited under the terms of the BT though they are not microorganisms in the strict sense of the word.