Brazil considers signing the Budapest Treaty and begins construction on a depositary center for biological materials

In the case of biological material essential for the practical execution of the subject matter of the patent application, which cannot be described and which has not been accessible to the public, the patent application should be supplemented by a deposit of a sample of the biological material in an institution authorized by the Brazilian Patent and Trademark Office (BPTO) or indicated in an international agreement.

The international treaty that addresses the deposit of biological materials for the purposes of patent procedures the Budapest Treaty, which was created on April 28, 1977 and currently has 73 member countries:

(Source: WIPO, 04.04.2011, https://www.wipo.int/treaties/ en/statistics/StatsResults.jsp?treaty_id=7&lang=en)

The growing number of member countries in the last three decades indicates an international trend toward signing the treaty:

One of the treaty’s objectives is to eliminate or reduce multiple deposits of biological materials, by way of a single deposit recognized by the PTO’s of the signatory countries. This is beneficial in terms of lower costs and greater security. The depositary centers recognized by the treaty are known as IDA’s, or International Depositary Authorities. There are currently 40 IDA’s, located in North America, Europe, India, Asia and Australia. A complete list of the IDA’s can be found on the World Intellectual Property Organization (WIPO) website: https://www.wipo.int/export/sites/www/ treaties/en/registration/budapest/pdf/ idalist.pdf

The IDA’s are impartial, objective centers that receive deposits of biological material for patent purposes and supply samples of deposited material for research after the secrecy period of the patent application. Internationally recognized IDA’s include The American Type Culture Collection – ATCC (USA) and the Deutsche Sammlung von Mikroorganismen und Zellkulturen GmbH – DSMZ (Germany). The centers receive the material, test it for purity and viability and then store it for a minimum of 30 years.

WIPO data show that between 1980 and 2009 the IDA’s received 69,702 biological material deposits. Of this total, in 2009 the largest number of deposits was made in China and the USA:

(Source: WIPO, 04.04.2011, https://www.wipo.int/ipstats/ en/statistics/micros/index.html)

Even though Brazil has not yet signed the Budapest Treaty – in fact, the only Latin American member is Peru – the BPTO recognizes IDA’s deposits made for the purposes of patent procedure as if it was a signatory country. In Brazil and the Latin America, there is no official depositary center recognized by the BPTO for the deposit of biological materials for patent purposes.

Nowadays, Brazilian researchers, research institutions and companies currently have to send their biological materials overseas before filing their patent applications, in order to comply with the requirements of the Brazilian PTO, and the requirements of foreign Patent and Trademark Office’s in the event they apply for patents abroad. The national and international health and customs legislations and the associated logistics drive costs up dramatically and generate considerable red tape, discouraging and hindering the patenting of biotechnological inventions.

Within this context, and also given that biotechnology has become a priority in Brazil’s industrial policy, the BPTO and the Brazilian federal government are currently considering signing the Budapest Treaty.

On April 2008, in the 1st International Symposium on Biotechnology Innovation and Intellectual Property, the BPTO launched the project for building and putting into operation the Brazilian Center for Biological Materials (CBMB), a strategic move by the Brazilian Ministry of Science and Technology (MCT), the Brazilian Ministry of Development, Industry and Foreign Trade (MDIC), the BPTO and the Brazilian institute of metrology (INMETRO).

On September 2010, in the 12th International Conference on Culture Collections, the Brazilian PTO introduced the CBMB.

On December 03, 2010, construction of the CBMB began on the campus of the INMETRO in Xerém (Duque de Caxias/ Rio de Janeiro). The groundbreaking was attended by the Presidents of the BPTO and INMETRO, as well as the Minister of Health. The BPTO says that construction should be completed in 2011 and the center is scheduled to open in 2012. The CBMB will have researchers from the BPTO and INMETRO, and will receive biological materials including bacteria, fungi, cell cultures and plasmids having biosafety levels 1 and 2 (BSL I and II).

The CBMB aims to receive deposits of biological materials for the purposes of patent procedure and make them available after the end of the secrecy period of the patent application, to develop a national system of biotechnology metrology, to build collections of Brazilian cultures, and to maintain backup copies of lineages considered strategic for the country.