2407.02 After a Patent Has Issued [R-07.2015]
A patent owner is required to notify the Office when it obtains information that a depository possessing a deposit referenced in a patent cannot furnish samples of the deposit. Failure to diligently replace the deposit and promptly thereafter request a certificate of correction which meets the terms of 37 CFR 1.805(b) and 37 CFR 1.805(c) will cause the patent involved to be treated in any Office proceeding as if no deposit were made.
A replacement or supplemental deposit made in connection with a patent, whether or not made during the pendency of an application for reissue patent or a reexamination proceeding or both, shall not be accepted unless a certificate of correction under 37 CFR 1.323 is requested which meets the terms of 37 CFR 1.805(b) and 37 CFR 1.805(c) for replacement or supplemental deposits. See MPEP § 1411.01 for including changes that were made by a certificate of correction to the original patent grant in a reissue application, and MPEP § 2219 for including a copy of any certificate of correction to the original patent grant as part of a request for ex parte reexamination.
37 CFR 1.805(b) and 37 CFR 1.805(c) specify the procedures that a patent owner may follow to ensure that a patent contains the appropriate information about a deposited biological material in the event that a replacement or supplemental deposit is made after the patent is granted. 37 CFR 1.805(b) describes the information which must be contained in the certificate of correction, whereas 37 CFR 1.805(c) describes the information which must be provided in the request to make the correction.
A request for a certificate of correction of a patent under 37 CFR 1.805(b) and 37 CFR 1.805(c) will not be granted where no original deposit was made before or during the pendency of the application which matured into the patent. A patent defective because of lack of a necessary deposit is necessarily fatally defective for failure to comply with the first paragraph of 35 U.S.C. 112. Reissue is not available in such cases. See In re Hay, 534 F.2d 917, 189 USPQ 790 (CCPA 1976).