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1823.01 MANUAL OF PATENT EXAMINING PROCEDURE
any such Office is a designated Office, provided that
the requirements have been published in the PCT
Gazette. AnnexL of the PCT Applicant's Guide indicates,
for each of the national (or regional) Offices,
the requirements (if any) of this kind which have been
published.
If any indication is not included in a reference to a
deposited biological material contained in the international
application as filed, it may be furnished to the
International Bureau within 16 months after the priority
date unless the International Bureau has been notified
(and, at least 2 months prior to the filing of the
international application, it has published in the PCT
Gazette) that the national law requires the indication
to be furnished earlier. However, if the applicant
makes a request for early publication, all indications
should be fumished by the time the request is made,
since any designated Office may regard any indication
not furnished when the request is made as not having
been furnished in time.
No check is made in the international phase to
determine whether a reference has been furnished
within the prescribed time limit. However, the International
Bureau notifies thedesignated Offices of the
date(s) on which indications, not included in the international
application as filed, were furnished to it.
Those dates are also mentioned in the pamphlet containing
the published international application. Failure
to include a reference to a deposited biological material
(or any indication required in such a-reference) in
the international application as filed, or failure to furnish
it. (or the indication) within the prescribed time
limit, has no consequence if the national law does not
require the reference (or indication) to befurnished in
a national application. Where there is a consequence,
it is the same as that which applies under the national
law.
To the extent that indications relating to the deposit
of a biological material are not given in the description,
because they are furnished later, they may be
given in the "optional sheet" provided for that purpose.
If the sheet.is submitted when the international
application is filed, a reference to it should be made in
the check list contained on the last sheet of the request
form. Should Japan be designated, such a sheet must,
if used, be included as one of the sheets of the description
at the time of filing; otherwise the indications
given in it will notbe taken into account by the Japa-
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nese Patent Office in the national phase. If the sheet is
furnished to the International Bureau later, it must be
enclosed with a letter.
Each national (or regional) Office whose national
law provides for deposits of biological material for
the purposes of patent procedure notifies the International
Bureau of the depositary institutions with
which the national law permits such deposits to be
made. Information on the institutions notified by each
of those Offices is published by the International
Bureau in the PCT Gazette:
A reference to a deposit cannot be disregarded by a
designated Office for reasons pertaining to the institution
with which the biological material was deposited
if the deposit referred to is one made with a depositary
institution notified by that Office. Thus, by consulting
the PCT Gazette or Annex L of the PCT Applicant's
Guide, the applicant can be sure that he has deposited
the biological material with an institution which will
be accepted by the designated Office;
International Searching Authorities and International
Preliminary Examining Authorities are not
expected to request access to deposited biological
material. However, in order to retain the possibility of
accessto a deposited biological material referred to in
an international application which is being searched
Or examined by such an Authority, the PCT provides
that the Authorities may, if they fulfill certain conditions,
ask for samples. Thus, an Authority may only
ask for samples if it has notified the International
Bureau (in a general notification) that it may require
samples and the International Bureau has published
the notification in the PCT Gazette. The only Authority
which has made such a notification (and thus the
only Authority which may request samples) is the
Japanese Patent Office. If a sample is asked for, the
request is directed to the applicant, who then becomes
responsible for making the necessary arrangements
for the sample to be provided.
The furnishing of samples of a deposit of a biological
material to third persons is governed by the
national laws applicable in the designated Offices.
PCT Rule 13 bis.6(b), however, provides for the delaying
of any furnishing of samples under the national
law applicable in each of the designated (or elected)
Offices until the start of the national phase, subject to
the ending of this "delaying effect" brought about by
the occurrence of either of the following two events: