Relevant provisions on microbiological materials in South African invention patent applications

In filing an invention patent application in South Africa, if the applicant claims a microbiological process or its product as an invention and claims to use a microorganism that is not available to the public on the date of application for the purpose of realizing the invention, or a microorganism that is not available or cannot be obtained according to the description in the specification, the following provisions shall be met:

• The deposit and survival date of the microorganism is no later than the date of application, and the culture of the microorganism has been deposited in an international depository institution that has obtained the provisions of the Budapest Treaty
• The description should state the name or recognized abbreviation of the international depositary organization where the culture will be deposited, as well as the deposit and survival numbers assigned by the international depositary organization.
• The submitted specification should provide the applicant with relevant information on the characteristics of the microorganism

The relevant provisions for declaration of biological and heritage resources are as follows:

• If the P26 form shows that the invention for which the patent is applied for is based on South African local biological resources, genetic resources, traditional knowledge or their use, the applicant must submit one or more of the following to the South African Patent Office to prove that he has the right to use these inventions:
  • Copy of permit issued under Chapter 7 of the National Environmental Management: Biodiversity Act 2004
  • provide proof of prior consent under section 82(2)(a) or 82(3)(a) of the National Environmental Management: Biodiversity Act 2004
  • Provide proof of a material transfer agreement under section 82(2)(b)(i) of the National Environmental Management: Biodiversity Act 2004
  • Provide evidence of a benefit-sharing agreement under section 82(2)(b) of the National Environmental Management: Biodiversity Act 2004
  • Proof of co-ownership of the claimed invention
  • Any other evidence satisfactory to the examiner