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2407.01 In a Pending Application - 2400 Biotechnology
2407.01 In a Pending Application
37 CFR 1.805(a) relates to the procedure for replacing or supplementing a deposit with respect to a pending application or a patent. An applicant or patent owner is required to notify the Office when it obtains information that the depository possessing a deposit cannot furnish samples of the deposit to satisfy the requirements of 35 U.S.C. 112. When the Office is so informed or otherwise becomes aware that samples of the deposited material cannot be furnished by the depository, the examiner will treat the application or reexamination proceeding, whichever is applicable, as if no deposit existed. A replacement or supplemental deposit will be accepted if it meets all the requirements for making an original deposit.
It should be noted that in a pending application, an applicant need not replace the identical material previously deposited, but may make an original deposit of a biological material which is specifically identified and described in the application as filed. Whether this alternative deposit will meet the requirements of 35 U.S.C. 112 with respect to the claimed subject matter must be resolved by the examiner on a case-by-case basis. The conditions in 37 CFR 1.802(b) and 37 CFR 1.804(b) must be satisfied.
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