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What is the Budapest Treaty in Patent Law?

How Did this Treaty Come Into Being?

The United Kingdom had presented a proposal to the Executive Committee of the Paris Union. It stated that WIPO should consider the possibilities of international treaty on the deposits of microorganisms. A decision was made to establish a Committee of Experts. This committee hosted three sessions (in 1974, 1975 and 1976). They prepared a draft of the Treaty and the Regulations that had to be submitted to a Diplomatic Conference. The Conference was held in Budapest, Hungary from 14th to 28th April, 1977. It was at this very conference that the Treaty was adopted.

The Budapest Treaty is officially known as The Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure. It is an international treaty, signed in Budapest, Hungary, on April 28, 1977 and came into force on August 19th, 1980. On September 26, 1980 it was modified.  This treaty was administered by the World Intellectual Property Organization (WIPO).

As of March 2021, 85 countries are an active part of the Budapest Treaty. The treaty allows accession to the member states of the Paris Convention of 1883.

image of organisms under microscope

What is the Main Content of the Treaty?

Deposits of microorganisms at an international depositary authority are recognised for the purposes of patent procedure,” according to the treaty. Generally, patent applications and patents must disclose the subject-matter of the invention in a way sufficiently clear and complete to be carried out by a person knowledgeable in the art in order to meet the statutory mandate of adequacy of disclosure. When a creation incorporates a microbe, it is nearly impossible to fully describe the invention in the description such that third parties can carry it out. This is why, in the case of microorganism-based inventions, a biological material deposit must be made in an accredited board.

The Budapest Treaty stipulates that a patent applicant, i.e. a person who applies for a patent, does not have the need to submit organic material in all nations where a patent is sought. The applicant just needs to deposit the same at one accredited facility, and this deposit will be recognised in all Budapest Treaty nations.

What Can Be Deposited?

The term microorganism is not defined in the Treaty, allowing for a broad interpretation of the term. Unicellular and multicellular organisms, bacteria, fungi, plant, animal, and human cell cultures, mouse embryos, plasmid, spores, and other materials are included. “Biological material” is a more appropriate term being commonly used.

More commonly the IDA accepts non-pathogenic yeasts, non-pathogenic bacteria and non-pathogenic fungi. Seldom does it accept MOs like pathogenic protozoa, murine embryos and oncogenes.

What Was the Need for a Specific Treaty?

  • The world needed an authority to ensure that proper and complete disclosure of the invention involving microbes were carried out. Patent law protection necessitates the public disclosure of inventions, which is normally accomplished by the publication of a description. The public may use the knowledge for experimental purposes (depending on country patent rules) and for commercial purposes once the patent has expired.
  • The treaty helps to discuss with its member states the proper way to disclose the microorganism.
  • This treaty ensures that the microorganism is deposited to keep a record of the same for future purposes, if necessary. When an invention uses or includes a new microbe that is not yet public information and cannot be fully disclosed in the description, a sample of that microorganism must be deposited with a culture collection.
  • The Budapest Treaty helps all nations understand the importance of one internationally recognized deposit for the microorganisms. The treaty allows for its member states to submit the invention in only one internationally-recognized depository instead of having to submit it to all the nations in which the applicant seeked the patent.

Conclusion

The Treaty makes the contracting State’s patent system more appealing because it is primarily beneficial to the depositor if he is a patent applicant in multiple contracting States; depositing a microorganism under the Treaty’s procedures will save him money and increase his security. It will save him money because he will only have to deposit the microorganism once, with one depositary authority, rather than in each contracting State where he files a patent application referring to that microorganism. The Treaty improves the depositor’s security by establishing a uniform method for deposit, recognition, and delivery of microorganism samples.

The Treaty does not establish a fund, but it does establish a Union and an Assembly whose members are the States that have signed the Treaty. The Assembly’s primary responsibility is to change the Treaty’s Regulations. No nation can be forced to pay funds to the World Intellectual Property Organization’s International Bureau as a result of its participation in the Budapest Union, or to establish a “international depositary authority.”

Author: Medha Mukherjee, Legal Intern at PA Legal.

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