USPTO Proposes Biological Material Deposits Be Made Available Before Patent Application Publication
To be ensured of consideration, comments must be received by the USPTO on or before April 21, 2008.
In particular, the revised rules would require that any deposit of biological material be made before the application publishes, and that all restrictions on access to the deposited material imposed by the depositor be removed upon publication.
. . . For purposes of enablement, the Federal Circuit has held that even "the availability of a sample to the public after the patent has issued will meet the enablement requirement." In re Lundak, 773 F.2d 1216, 1223 (Fed. Cir. 1985). Since the American Inventors Protection Act went into effect, certain commentators have argued that because the publication of a U.S. application can create provisional rights for the applicant, the published application must be in compliance with the enablement and written description requirements of § 112. This means that, if needed for § 112 purposes, a deposit of biological material would need to be made prior to publication (i.e., that the AIPA supersedes the rule stated in Lundak).