Biological material deposited in accordance with Rule 31 shall be available upon request to any person from the date of publication of the European patent application and to any person having the right to inspect the files under Article 128, paragraph 2, prior to that date. Subject to Rule 32, such availability shall be effected by the issue of a sample of the biological material to the person making the request (hereinafter referred to as "the requester").
Said issue shall be made only if the requester has undertaken vis-à-vis the applicant for or proprietor of the patent not to make the biological material or any biological material derived therefrom available to any third party and to use that material for experimental purposes only, until such time as the patent application is refused or withdrawn or deemed to be withdrawn, or before the European patent has expired in all the designated States, unless the applicant for or proprietor of the patent expressly waives such an undertaking.
The undertaking to use the biological material for experimental purposes only shall not apply in so far as the requester is using that material under a compulsory licence. The term "compulsory licence" shall be construed as including ex officio licences and the right to use patented inventions in the public interest.
For the purposes of paragraph 2, derived biological material shall mean any material which still exhibits those characteristics of the deposited material which are essential to carrying out the invention. The undertaking under paragraph 2 shall not impede any deposit of derived biological material necessary for the purpose of patent procedure.
The request referred to in paragraph 1 shall be submitted to the European Patent Office on a form recognised by that Office. The European Patent Office shall certify on the form that a European patent application referring to the deposit of the biological material has been filed, and that the requester or the expert nominated by him under Rule 32 is entitled to the issue of a sample of that material. After grant of the European patent, the request shall also be submitted to the European Patent Office.
The European Patent Office shall transmit a copy of the request, with the certification provided for in paragraph 4, to the depositary institution and to the applicant for or the proprietor of the patent.
Date retrieved: 02 November 2015
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EPC Implementing Rules
EPO Guidelines - A Formalities Examination
EPO Guidelines - B Search
EPO Guidelines - F The European Patent Application
EPO Guidelines - G Patentability
EPO Guide for Applicants, part II Int. - B The EPO as a PCT receiving Office
EPO Guide for Applicants, part II Int. - E Euro-PCT procedure before the EPO as designated or elected Office
Offical Journal of the EPO
XOJ EPO 2015, A10 - Notice from the European Patent Office dated 10 December 2014 concerning forms and publications available from the EPO
XOJ EPO 2014, A7 - Notice from the European Patent Office dated 2 December 2013 concerning forms and publications available from the EPO
XOJ EPO 2010, 498 - Notice from the European Patent Office dated 7 July 2010 concerning inventions which involve the use of or concern biological material