Decree of the Minister for Foreign Affairs No. 212 / 1989 Coll.
Decree of the Minister for Foreign Affairs on the Treaty of Budapest and international recognition of the deposit of micro-organisms for the purposes of patent proceedings and implementing regulations
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212
DECLARATION
Minister for Foreign Affairs
of 29 December 1989
on the Budapest Treaty on international recognition for the storage of micro-organisms for the purposes of patent proceedings and implementing regulations
On 28 April 1977, the Budapest Treaty on international recognition for the storage of micro-organisms for the purposes of the patent procedure and the Implementing Regulation were negotiated in Budapest.
The Charter on the access of the Czechoslovak Socialist Republic to the Budapest Treaty on International Recognition of the Storage of Microorganisms for Patent Procedure was deposited with the Director-General of the World Intellectual Property Organisation, the Depository of the Budapest Treaty, on 5 May 1989.
The Treaty of Budapest entered into force on 19 August 1980 pursuant to Article 16 (1) thereof. For the Czechoslovak Socialist Republic, the Budapest Treaty entered into force on 5 August 1989 in accordance with Article 16 (2).
The Czech translation of the Budapest Treaty is announced simultaneously.
Minister:
Dienstbier v. r.
BUDAPESIAN TREATY
on the international recognition of the deposit of micro-organisms for the purposes of patent proceedings adopted at the Budapest Diplomatic Conference on 28 April 1977, as amended in 1980
INTRODUCTORY PROVISIONS
Establishment of a Union
The States Parties in this Treaty ("the Contracting States') shall constitute the Union for the international recognition of the deposit of micro-organisms for the purposes of patent proceedings.
Definition of terms
For the purposes of this Treaty and its implementing Regulation:
/ i / patent means patents for inventions, copyright certificates, utility certificates, utility models, supplementary patents or supplementary certificates, supplementary copyright certificates and supplementary utility certificates;
/ ii / "storage of the micro-organism" means, in accordance with the context in which these words occur, the following operations carried out pursuant to this Treaty and its implementing regulation: the transfer of micro-organisms to an international storage place which the micro-organisms take over and receive, or the storage of such micro-organisms by an international storage place, or the transfer and storage thereof;
/ iii / "patent procedure" means any administrative or judicial procedure concerning a patent application or patent;
/ iv / "publication for the purposes of patent proceedings" means the official publication of a patent application or patent or their official unloading for public consultation;
/ v / "Intergovernmental Industrial Property Organisation" means an organisation which has made a declaration pursuant to Article 9 / 1 /;
/ vi / "Industrial Property Office" means the office of the Contracting State or of an intergovernmental industrial property organisation competent to grant patents;
/ vii / "storage institution" means an institution which provides for the collection, reception and storage of micro-organisms and the supply of samples thereof;
/ viii / "international storage place" means a storage institution which has acquired the status of the storage place pursuant to Article 7;
/ ix / "obligor" means a natural or legal person, transferring a micro-organism to an international storage place to be taken over and accepted by the micro-organism and the legal successor to that natural or legal person;
/ x / "Union 'means the Union referred to in Article 1;
/ xi / "Assembly 'means the assembly referred to in Article 10;
/ xia / "Organisation 'means the World Intellectual Property Organisation;
/ xiii / "International Office" means the International Office of the Organisation and, for its duration, the United International Intellectual Property Protection Authorities (BIRPI);
/ xiv / "Director-General 'means the Director-General of the Organisation;
/ xv / "Implementing Regulation 'means the implementing regulation referred to in Article 12.
BASIC PROVISIONS
Recognition and effects of storage of micro-organisms
/ 1 / (a) Contracting States which permit or require the storage of micro-organisms for the purposes of patent proceedings shall recognise for such purposes the storage of the micro-organism at any international storage site. Such recognition shall include the recognition of the fact and the dates of the deposit provided for by the international storage place, as well as the recognition of the fact that what was delivered as a sample is a sample of the stored micro-organism.
(b) Any Contracting State may require a copy of the deposit receipt referred to in subparagraph (a), issued by an international storage place.
/ 2 / With regard to matters covered by this Treaty and the Implementing Regulation, no Contracting State may require compliance with requirements different from those laid down in this Treaty and the Implementing Regulation, or with regard to those additional requirements.
New Storage
/ 1 / (a) If, for any reason, an international storage site cannot be able to supply samples of the stored micro-organism, in particular:
/ i / if the micro-organism is no longer viable, or
/ ii / if the supply of samples would require them to be sent abroad and the export or import restrictions would not allow the dispatch to a foreign country or take-over of a sample abroad,
that storage site shall be notified to the respondent immediately after such impossibility has been established that it cannot deliver the samples and shall state the reasons; subject to the reservations of paragraph 2 (a), and in accordance with the provisions of this paragraph, the obligor shall have the right to re-deposit the micro-organism which was the subject of the original deposit.
(b) A new deposit shall be made at the international storage site where the original deposit was made, subject to:
/ i / shall be carried out at another international storage site if the institution for which the original storage operation was carried out has ceased its status either entirely or as regards the type of micro-organism to which the stored micro-organism belongs, or if the international storage site for which the original storage operation was carried out ceases temporarily or permanently to perform its functions as regards stored micro-organisms;
/ ii / may be carried out at another international storage site in the case referred to in paragraph (a) / (ii).
(c) Any new deposit shall be accompanied by a representative by a signed declaration confirming that the micro-organism that is subject to the new deposit is the same as the micro-organism that was the subject of the original deposit. If there are objections to the defendant's claim, the burden of proof shall be governed by the relevant legislation.
(d) Subject to the provisions of subparagraphs (a) to (c) and (e), the redeposit shall be deemed to have taken place at the date of the original deposit if it appears from all previous declarations of viability of the micro-organism which was the subject of the original deposit that the micro-organism was viable and if the redeposit was carried out within three months of the date on which the obligor received the notification referred to in the subparagraph (a).
(e) In cases where subparagraph (b) / i / a of the obligor does not receive the notification referred to in subparagraph (a) within a period of six months from the date on which the termination, restriction or interruption referred to in subparagraph (b) / i is published by the International Bureau, the three-month period referred to in subparagraph (d) shall be calculated from the date of such publication.
/ 2 / The law referred to in paragraph / 1 / (a) shall not arise if the micro-organism has been transferred to another international storage site, provided that the storage site is capable of delivering samples of that micro-organism.
Export and import restrictions
Each Contracting State recognises that it is most desirable that restrictions, if any, and the extent of restrictions on exports of certain types of micro-organisms from its territory or their introduction into its territory apply to stored or stored designated micro-organisms under this Treaty only if the restriction is necessary with regard to national safety or risk to health or the environment.
Status of the international storage site
/ 1 / Any depositing institution, if it is to be eligible for the status of an international depository, shall be in the territory of a Contracting State and shall benefit from the assurance provided by that State that the institution fulfils and will continue to comply with the requirements set out in paragraph 2. Those assurances may also be provided by an intergovernmental industrial property organisation; in that case, the place of deposit must be in the territory of a Member State of that organisation.
/ 2 / As an international storage site, storage institutions must:
/ i / exist permanently;
/ ii / have staff and equipment required by the implementing regulation necessary to carry out their scientific and administrative tasks under this Treaty;
/ iii / be impartial and objective;
/ iv / for storage purposes to be available to all respondents under the same conditions;
/ v / accept for storage all or certain types of micro-organisms, examine their viability and store them in accordance with the provisions of the implementing Regulation;
/ vi / issue receipts to the respondents and any required declaration of viability in accordance with the provisions of the implementing regulation;
/ vii / maintain confidentiality with regard to stored micro-organisms according to the provisions of the implementing Regulation;
/ viii / deliver samples of all stored micro-organisms under the conditions and in the manner laid down in the implementing Regulation.
/ 3 / The implementing regulation lays down the measures to be taken:
/ i / if the international storage site ceases to carry out its functions temporarily or definitively as regards stored micro-organisms, or if it refuses to accept one of the species of micro-organisms it is to receive within the meaning of the assurances provided;
/ ii / if the international storage site is destroyed or the status of the international storage site is reduced.
Acquisition of the status of an international storage post
/ 1 / (a) A storage institution shall acquire the status of an international storage post on the basis of a written notice addressed to the Director-General by the Contracting State in whose territory the deposit institution is located and containing a statement of assurance that that institution fulfils and will continue to comply with the conditions set out in Article 6 / 2 /. That Statute may also be obtained on the basis of a written notification addressed to the Director-General of Intergovernmental Industrial Property Organisations; the notification shall also include the said declaration.
(b) The notification also contains information on the storage institution under the implementing regulation and may specify the date from which the status of the international storage point is to take effect.
/ 2 / (a) If the Director-General finds that the notification contains the necessary statements and that all the information required has been obtained, the notice shall be published without delay by the International Bureau.
(b) The status of an international storage site shall be taken from the date of publication of the notice or from the date referred to in paragraph 1 (b), if this date is later than the date of publication of the notice.
/ 3 / The implementing regulation shall lay down the details of the driving procedures referred to in paragraphs 1 and 2.
Termination and limitation of the status of an international storage site
/ 1 / (a) Any contracting State or any intergovernmental industrial property organisation may request the assembly to revoke the status of an international storage site or to limit it to certain types of micro-organisms on the grounds that the requirements referred to in Article 6 have not been met or are no longer met. However, such a request may not be made by a Contracting State or an intergovernmental industrial property organisation as regards the international storage place for which they have made a declaration pursuant to Article 7 / 1 / (a).
(b) Before submitting an application pursuant to subparagraph (a), the Contracting State or Intergovernmental Industrial Property Organisation shall communicate, through the Director-General, to the Contracting State or to the Intergovernmental Industrial Property Organisation which has made the notification referred to in Article 7 / 1 /, the reasons for the proposed application in such a way that that State or organisations may, within six months of the date of that communication, take appropriate measures to prevent the submission of the proposed application.
(c) If the Assembly finds that the application is justified, it shall decide on the termination of the status of the international storage point at the storage point referred to in the subparagraph (a) or on the limitation of that status to certain types of micro-organisms only. Two thirds of the votes cast in favour of the application shall be required for the decision of the Assembly.
/ 2 / (a) The Contracting State or intergovernmental industrial property organisations which have made the declaration referred to in Article 7 / 1 / (a) may withdraw their declaration either in whole or in respect of certain types of micro-organisms by notification to the Director-General. They shall in any case do so to the extent that their assurances are no longer valid.
(b) As from the date laid down in the implementing regulation, such notification shall result either in the withdrawal of the status of the international storage place as regards the declaration of the overall or the relevant restriction of that status, if only certain types of micro-organisms are concerned.
/ 3 / The implementing regulation shall lay down the details of the driving procedures referred to in paragraphs 1 and 2.
Intergovernmental Industrial Property Organisation
/ 1 / (a) Any intergovernmental organisation entrusted by certain States with the granting of regional patents and of which all Member States are members of the International Industrial Property Protection Union may make a declaration to the Director-General that it accepts the recognition obligation referred to in Article 3 / 1 / (a) concerning the requirements referred to in Article 3 / 2 / and all the effects of the provisions of this Treaty and of the implementing regulation applicable to intergovernmental industrial property organisations. Where the declaration referred to in the preceding sentence is lodged before the entry into force of this Treaty pursuant to Article 16 / 1 /, it shall become effective at the date of that entry into force of the Treaty. If submitted after this entry into force of the Treaty, it shall become effective three months after submission. If the declaration indicates a later date, the declaration shall become effective from that date.
(b) That organisation has the authorisations provided for in Article 3 / 1 / (b).
/ 2 / If any provision of this Treaty or of the implementing regulation relating to an intergovernmental industrial property organisation is revised or amended, any intergovernmental industrial property organisation may withdraw its declaration referred to in paragraph / 1 / notification addressed to the Director-General. The appeal shall take effect:
/ i / if the notification was received before the date on which the revision or correction takes effect, on that date;
/ ii / if the notification was accepted after the date referred to in the provision (i), at the date indicated in the notification, or if there is no such indication, three months after the date on which the notification was accepted.
/ 3 / In addition to the case referred to in paragraph / 2, any intergovernmental industrial property organisation may withdraw its declaration referred to in paragraph / 1 / (a) by a notification addressed to the Director-General. This appeal shall enter into force two years after the date on which the Director-General accepted the notification. A notice of appeal under this paragraph shall not be admissible for a period of 5 years from the date on which the declaration became valid.
/ 4 / The appeal referred to in paragraph 2 / or / 3 / made by an intergovernmental industrial property organisation, the notification of which pursuant to Article 7 / 1 / led to the acquisition of the status of an international deposit post by the depositing institution, shall result in the termination of such status 1 year from the date on which the Director-General accepted the notice of appeal.
/ 5 / Declaration referred to in paragraph 1 / (a), notice of appeal referred to in paragraph 2 / or / 3 /, assurances provided pursuant to Article 6 / 1 /, second sentence, and included in a declaration made in accordance with Article 7 / 1 / (a), requests made pursuant to Article 8 / 1 /, notice of appeal referred to in Article 8 / 2 / require the express prior approval of the Supreme Managing Authority of the Intergovernmental Organisation for Industrial Property, of which all the Member States of that organisation are members and in which decisions are taken by official representatives of the Governments of those countries.
ADMINISTRATIVE PROVISIONS
Assembly
/ 1 / (a) The Assembly shall consist of the Contracting States.
(b) Each Contracting State shall be represented by one delegate who may have alternates, advisers and experts.
(c) Each intergovernmental industrial property organisation shall be represented at meetings of the Assembly, within each committee and working group established by the Assembly, by special observers.
(d) Any State which is not a member of the Union but is a member of the Industrial Property Protection Organisation or International (Paris) Union and any intergovernmental organisation specialised in patents which is not an intergovernmental industrial property organisation within the meaning of Article 2 (v) may be represented by observers at meetings of the Assembly and, if so decided by the Assembly, also at meetings of committees or working groups set up by the Assembly.
/ 2 / (a) Assembly:
/ i / discuss all issues relating to the maintenance and development of the Union and the implementation of this Treaty;
/ ii / exercise such rights and carry out such tasks as have been specifically granted or reserved by this Treaty;
/ iii / gives the Director-General directives on the preparation of review conferences;
/ iv / reviews and approves the reports and activities of the Director-General concerning the Union and gives him all necessary directives concerning matters within the Union's competence;
/ v / establishes such committees and working groups as it deems appropriate to facilitate Union action;
/ vi / decide, subject to paragraph / 1 / (d), which non-Contracting States which intergovernmental organisations other than intergovernmental industrial property organisations referred to in Article 2 / v / and which international non-governmental organisations may attend meetings as observers, as well as the extent to which international storage points may attend meetings as observers through their representatives;
/ vii / takes any other appropriate action to achieve the Union's objectives;
/ viii / performs all other appropriate functions under this Treaty.
(b) All matters of interest to the other Union managed by the Organisation are decided by the Assembly after hearing the opinion of the Coordination Committee of the Organisation.
/ 3 / One delegate may represent only one contracting state and vote only on its behalf.
/ 4 / Each Contracting State shall have one vote.
/ 5 / (a) The half of the Contracting States shall form a quorum.
(b) If this quorum is not reached, the Assembly may take decisions, but all such decisions, other than those relating to its own procedural issues, shall be valid only if the quorum and the majority required have been reached by a voting letter, as provided for by the implementing regulation.
/ 6 / (a) Subject to Articles 8 / 1 / (c), 12 / 4 / and 14 / 2 / (b), a majority of the votes cast shall be required for the decision of the Assembly.
(b) abstention shall not be considered a vote.
/ 7 / (a) The Assembly shall meet at a regular meeting once every two years on the basis of a meeting of the Director-General, preferably in the same period and place as the General Assembly of the Organisation.
(b) The Assembly shall meet at an extraordinary meeting on the basis of a meeting of the Director-General, either on his own initiative or at the request of one quarter of the number of States Parties.
/ 8 / The Assembly shall adopt its own Rules of Procedure.
International Bureau
/ 1 / International Bureau:
/ i / carry out administrative tasks relating to the Union, in particular those specifically imposed on it by this Treaty and the Implementing Regulation or by the Assembly;
/ ii / provides the secretariat of the review conferences, the Assembly, the committees and working groups set up by the Assembly, as well as all other meetings convened by the Director-General and discussing Union issues.
/ 2 / The Director-General shall be the senior official of the Union and shall represent him.
/ 3 / The Director-General shall convene all meetings concerning cases concerning the Union.
/ 4 / (a) The Director-General and any executive officer appointed by the Director-General shall participate without the right to vote in all meetings of the Assembly, committees and working groups set up by the Assembly, as well as in all other meetings convened by the Director-General and discussing matters relating to the Union.
(b) The Director-General or a member of the executive agency appointed by the Director-General shall exercise the office of Secretary of the Assembly and of the committees, working groups and other meetings referred to in the subparagraph (a) as an official.
/ 5 / (a) The Director-General shall prepare the review conferences in accordance with the directives of the Assembly.
(b) As regards the preparation of review conferences, the Director-General may consult intergovernmental organisations and international NGOs.
(c) The Director-General and the persons designated by him shall participate without the right to vote in the meetings of the review conferences.
(d) The Director-General or any member of the Executive Agency designated by him shall be the secretary of the review conferences.
Implementing Regulation
/ 1 / Implementing Regulation contains rules concerning:
(i) goods expressly referred to in this Treaty to an implementing act or expressly providing that they are or will be prescribed;
/ ii / all administrative requirements, matters or procedures;
/ iii / all the details necessary for the implementation of this Treaty.
/ 2 / The implementing regulation adopted at the same time as this Treaty is attached to this Treaty.
/ 3 / The assembly may amend the implementing regulation.
/ 4 / (a) Subject to subparagraph (b), two thirds of the votes cast shall be required for the adoption of any amendment to the implementing regulation.
(b) In order to adopt any change concerning the supply of samples of stored micro-organisms by international storage sites, no Contracting State shall be required to vote against the proposed amendment.
/ 5 / In the event of a discrepancy between the provisions of this Treaty and those of the implementing regulation, the relevant provisions of this Treaty shall apply.
REVIEW AND AMENDMENT
Review of the contract
/ 1 / The Conference of the Contracting States may occasionally revise the provisions of this Treaty.
/ 2 / The Assembly decides to convene a review conference.
/ 3 / Articles 10 and 11 may be amended either by a review conference or under Article 14.
Amendment of certain provisions of the Treaty
/ 1 / (a) Proposals for amendments to Articles 10 and 11 may be made at the initiative of any Contracting State or Director-General.
(b) The Director-General shall inform the Contracting States of such proposals at least six months before the meeting.
/ 2 / (a) Amendments to the articles referred to in paragraph 1 shall be accepted by the Assembly.
(b) Four fifths of the votes cast are required to accept any amendment to Article 10; three quarters of the votes cast shall be required to adopt any amendment to Article 11.
/ 3 / (a) Any amendment to the articles referred to in paragraph 1 shall enter into force one month after the Director-General has received, from three quarters of the total number of States Parties which were members of the Assembly at the time the amendment was adopted, a written notification of receipt made in accordance with the constitutional provisions of the Contracting States.
(b) Any amendment to these Articles thus adopted obliges all Contracting States which were Contracting States at the time of the adoption of the amendment by the Assembly, subject to any amendment constituting financial commitments for or increasing such commitments for those Contracting Parties, only those of the Contracting Parties which have notified that they accept such a change.
(c) Any amendment which has been adopted and which has entered into force in accordance with subparagraph (a) obliges all States which become Contracting States after the date of adoption of the amendment by the Assembly.
FINAL PROVISIONS
Establishment of membership under contract
/ 1 / Any State which is a member of the International Union for the Protection of Industrial Property may become a party to this Treaty if:
/ i / signing the contract and then submitting the instrument of ratification; or
/ ii / submit the instrument of accession.
/ 2 / The instruments of ratification or accession shall be deposited with the Director-General.
Entry into force of the Treaty
/ 1 / As regards the five States or intergovernmental organisations which first submitted their instruments of ratification or accession, this Treaty shall enter into force three months after the date of submission of the fifth instrument of ratification or accession.
/ 2 / As regards any other State, this Treaty shall enter into force three months after the date on which the competent State has submitted its instrument of ratification or accession, unless a later date is indicated in the instrument or declarations referred to therein. In that case, this Treaty shall enter into force from the date thus stated, as far as the competent State is concerned.
Termination of the contract
/ 1 / Each Contracting Party may terminate this Agreement by notifying the Director-General.
/ 2 / Termination shall enter into force two years after the date on which the Director-General received the notification.
/ 3 / No Contracting State shall have the right to terminate the contract in accordance with the provisions of paragraph 1 before the expiry of five years from the date on which it became a party to the contract.
/ 4 / The termination of this Treaty by a Contracting State which has made a declaration pursuant to Article 7 / 1 / (a) in respect of the depositing institution which has thus acquired the status of the international depository office shall result in the termination of such status one year after the date on which the Director General received the notification referred to in paragraph 1.
Signature of the contract and languages of the contract
/ 1 / (a) This contract is signed in a single original in French and English, both texts authentic.
(b) The official texts of this Treaty shall be laid down by the Director-General, after consulting the governments concerned, within two months of the date of signature of this Treaty in the other languages in which the Convention establishing the World Intellectual Property Organisation was signed.
(c) The official texts shall be laid down by the Director-General, after consulting the governments concerned, in the Arabic, German, Italian, Portuguese and Japanese languages and, where appropriate, in other languages which may be designated by the Assembly.
/ 2 / This Treaty shall remain open for signature in Budapest until 31 December 1987.
Save the contract; the transmission of copies; registration of contract
/ 1 / Upon expiry of the period reserved for signature, the original of this contract shall be deposited with the Director-General.
/ 2 / The Director-General shall forward two certified copies of this Treaty and the implementing act to the governments of all States referred to in Article 15 / 1, to the intergovernmental organisations referred to in Article 9 / 1 / (a) and, upon request, to the Government of any other State.
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Regulation Information
| Citation | Decree of the Minister for Foreign Affairs No. 212 / 1989 Coll., on the Budapest Treaty and international recognition of the storage of micro-organisms for the purposes of patent proceedings and implementing regulations for it |
|---|---|
| Regulation Type | - |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 30.12.1989 |
|---|---|
| Effective from | 05.08.1989 |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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