3 DE ABRIL DE 1997

474-(3)

that authority shall, promptly after having -noted its inability to furnish samples, notify the depositor of such inability, indicating the cause thereof, and the depositor, subject to paragraph 2 and as provided in this paragraph, shall have the right to make a new deposit of microorganism which was originally deposited.

6) The new deposit shall be made with the international depositary authority with which the original deposit was made, provided that:

0 It shall be made with another international depositary authority where the institution with which the original deposit was made has ceased to have the status of international depositary authority, either entirely or in respect of the kind of microorganism to which the deposited microorganism belongs, or where the international depositary authority with which the original deposit was made discontinues, temporarily or definitively, the performance of its functions in respect of deposited microorganisms; ii) It may be made with another international depositary authority in the case referred to in subparagraph a), ii).

c) Any new deposit shall be accompanied by a statement signed by the depositor alleging that the newly deposited microorganism is the same as that originally deposited. If the allegation of the depositor is contested, the burden of proof shall be governed by the applicable law.

d) Subject to subparagraphs a) to c) and e), the new deposit shall be trated as if it had been made on the date on which the original deposit was made where all the preceding statements concerning the viability of the originally deposited microorganism indicated that the microorganism was viable and where the new deposit was made within three months after the date on which the depositor received the notification referred to in subparagraph a).

e) Where subparagraph b), i), applies and the depositor does not receive the notification referred to in subparagraph a) within six months after the date on which the termination, limitation or discontinuance referred to in subparagraph b), i), was published by the International Bureau, the three-month time limit referred to in subparagraph d) shall be counted from the date of the said publication.

2 — The right referred to in paragraph 1, a), shall not exist where the deposited microorganism has been transferred to another international depositary authority as tang as the authority is in a position to furnish samples of. such microorganism.

Article 5 Export and import restrlcUons

Each Contracting State recognizes that it is highly desirable that, if and to the extent to which the export from or import into its territory of certain kinds of microorganisms is restricted, such restriction should aplly to microorganisms deposited, or destined for deposit, under this Treaty only where the restriction is necessary in view of national security or the dangers for health or the environment.

Article 6

Status of international depositary authority

1 — In order to qualify for the status of international depositary authority, any depositary institution must be located on the territory of a Contracting State and must benefit from assurances furnished by that State to the effect that the said institution complies and will continue to comply with the requirements specified in paragraph 2. The said assurances may be furnished also by an intergovernmental industrial property organization; in that case, the depositary institution must be located on the territory of a State member of the said organization.

2 — The depositary institution must, in its capacity of international depositary authority:

i) Have a continuous existence;

ii) Have the necessary staff and facilities, as prescribed in the Regulations, to perform its scientific and administrative tasks under this Treaty;

iii) Be impartial and objective;

iv) Be available, for the purposes of deposit, to any depositor under the same conditions;

v) Accept for deposit any or certain kinds of microorganisms, examine their viability and store

' them, as prescribed in the Regulations;

vi) Issue a receipt to the depositor, and any required viability statement as prescribed in the Regulations;

vii) Comply in respect of the deposited microorganisms, with the requirement of secrecy as prescribed in the Regulations;

viii) Furnish samples of any deposited microorgan- -isms under the conditions and in conformity with the procedure prescribed in the Regulations.

3 — The Regulations shall provide the measures to be taken:

i) Where an international depositary authority discontinues, temporarily or definitively, the performance of its functions in respect of deposited microorganisms or refuses to accept any of the kinds of microorganisms which it should accept under the assurances furnished;

ii) In case of the termination or limitation of the status of international depositary authority of an international depositary authority.

Article 7

Acquisition of the status of international depositary authority

1 — a) A depositary institution shall acquire the status of international depositary authority by virtue of a written communication addressed to the Director General by the Contracting State on the territory of which the depositary institution is located and including a declaration of assurances to the effect that the said institution complies and will continue to comply with the requirements specified in article 6, 2. The said status may be acquired also by virtue of a written communication addressed to the Director General by an intergovernmental industrial property organization and including the said declaration.

b) The communication shall also contain information on the depositary institution as provided in the Reg-