a) Conversion into deposit under the Budapest Treaty 

T 39/88 (OJ 1989, 499) affirmed the principle that one important purpose of R. 28 EPC 1973 (R. 31 EPC) is to make the availability of the deposited organisms independent of any consent by the depositor. The board observed that the proper way of bringing a deposit originally filed for another purpose (here a US application) into line with the requirements of the EPC system was to formally convert the deposit into a deposit under R. 28 EPC 1973 (in the case of a deposit made on the basis of a special agreement between the EPO and the depositary institution) or into a deposit under the Budapest Treaty (which automatically covered R. 28 EPC 1973), as the case might be (see also T 239/87, T 90/88, T 106/88).

In T 2068/11 a lactobacillus strain had originally been deposited with a Japanese depositary institution that was not recognised under the Budapest Treaty and not listed by the EPO. The board ultimately decided that this deposit's conversion after filing of the European patent application had been too late; the application could not refer to the international deposit (application refused).