Section 6(a) requires that a micro-organism be deposited with a “prescribed depositary institution”. Under sec 6(c), the specification is required to include the name of the “prescribed depositary institution” from which samples of the micro-organism are obtainable. Section 6(d) requires that samples of the micro-organism have been obtainable from the “prescribed depositary institution” at all times since the filing date of the specification.

The term "prescribed depositary institution" includes an International Depositary Authority (IDA) under Rule 3 of the Budapest Treaty. A list of the recognised IDAs is available from WIPO.

Note: The International Patent Organism Depositary (IPOD), National Institute of Technology and Evaluation (NITE), was formerly known as the National Institute of Bioscience and Human-Technology, Agency of Industrial Science and Technology (NIBH).

Meaning of “relevant information on the characteristics of the micro-organism”

At filing, the specification is required to include “relevant information on the characteristics of the micro-organism” as is known to the applicant (sec 6(b)). In general, this is satisfied by indicating the scientific name of the deposited micro-organism(s). Full morphological, biochemical and taxonomic characteristics of the micro-organism are usually not required, or may not be known to the applicant at the date of filing of the specification.

Meaning of “the end of the prescribed period”

In sec 6(c), "the end of the prescribed period" means either:

where a deposited micro-organism has ceased to be reasonably available, the end of the prescribed period is 3 months from the date specified in the declaration made by the Commissioner or a prescribed court that the specification does not comply with sec 40.

(see sec 42(1), sec 42(2) and reg 1.5(1)(a))

in any other case, the end of the prescribed period is the end of the day immediately before the day on which the specification becomes open to public inspection (OPI), or immediately before acceptance, whichever occurs earlier.

(see reg 1.5(1)(b))

For national phase applications, the OPI date is the day on which:

PCT international publication occurs; or
a notice is published in the Official Journal, if that is earlier.

Meaning of “has included”

Section 6(c) requires that the specification “has included” the name of the prescribed depositary institution from which samples of the micro-organism are obtainable and the file, accession or registration number of the deposit.

The issue of whether a specification "has included" the sec 6(c) information arises when examiners consider if the requirements of sec 40 and sec 41 have been satisfied, or when an applicant seeks to insert information under sec 104.

The specification has not included the information relating to the deposit if the relevant information was:

absent

i.e. no information relating to the deposit was previously disclosed in the specification;

incomplete

i.e. information relating to the deposit was previously present, but that information was incomplete, e.g. the file, accession or registration number was omitted;

incorrect and a hindrance

i.e. information relating to the deposit was previously present, but that information was incorrect (e.g. the deposit number was wrong), and the incorrect information would have hindered a person seeking access to the deposit.

Note: If incorrect information relating to the deposit was previously present, but the error would not have hindered a person seeking access to the deposit (e.g. if the file, accession or registration number contains an obvious mistake), then the specification “has included” the sec 6(c) information.

For national phase applications, the reference to a deposit may be disclosed on a separate sheet furnished under Rule 13bis.4, and is taken to be included in the description of the PCT application. The separate sheet can be Form PCT/RO/134 or a copy of the deposit receipt from an IDA.

If the specification does not include the required information, it cannot be inserted into the specification on or after OPI without a sec 223 extension of time (see 2.7.5 Amendments to Insert Section 6(c) Information and Extensions of Time Therefor).