The Budapest Treaty provides a mechanism whereby patent
applicants can sufficiently "describe" a biological
invention by making a deposit of biological material with a
recognised international depositary authority. To avail of this
mechanism, however, applicants must meet strict deadlines,
including when the deposit is made and when details of the deposit
are included in the patent specification.
In GloFish, LLC [2022] APO 52, the
Australian Patent Office ruled that the time for making a deposit
under the Budapest Treaty cannot be extended.
Background
GloFish, LLC ("GloFish") sought to rely on the
Budapest Treaty when seeking patent protection for its transgenic
Siamese fighting fish (Betta splendens). The
genetically modified fish, referred to as "Bettas",
display fluorescent colours when exposed to light of certain
wavelengths.
