PCT AG-IP 5.062 What are the consequences if the international application is filed after the expiration of the priority period?

Rule 26bis.3

5.062.   What are the consequences if the international application is filed after the expiration of the priority period?  Where an international application has an international filing date which is later than the date on which the priority period expired (see paragraph 5.059) but within a period of two months from that date, the priority claim concerned will not be declared void for the purposes of the international phase of the PCT procedure, irrespective of whether the restoration of the right of priority is requested (see below), or whether such a request is accepted or refused by the receiving Office.  Where the priority claim in question is the only or the earliest priority claim in the international application, it will continue to serve as the basis to calculate all time limits during the international phase.  Note, however, that the fact that the priority claim is retained in the international application does not mean in any way that the validity of such a priority claim in the national phase is assured.

 

In respect of such a priority claim, the applicant may file a request for the restoration of the right of priority with the receiving Office (see the following paragraphs for the procedure relating to the restoration of the right of priority).  Several receiving Offices have, however, notified the International Bureau under Rule 26bis.3(j) of the incompatibility of the provisions governing such requests to restore the right of priority with the national laws applied by those Offices.  As a result, those receiving Offices will not apply those provisions and thus do not accept such requests.  A list of Offices which will not accept requests under Rule 26bis.3(a) can be found on WIPO’s website at www.wipo.int/pct/en/texts/reservations/res_incomp.html#R_26bis_3_j.  To the extent that the applicant is aware, before filing the international application, of the need to file a request for restoration, he should consider filing the international application with a competent receiving Office that does accept such requests.  For example, the receiving Office of the International Bureau accepts such requests and is competent for international applications filed by a national or resident of any PCT Contracting State.  If the need to file a request to restore only becomes apparent after the international application has already been filed, the applicant may request the receiving Office to transmit the international application to the receiving Office of the International Bureau under Rule 19.4(a)(iii).

Source: http://www.wipo.int/pct/en/appguide/text.jsp?page=ip05.html

Date retrieved: 24 November 2017

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PCT Implementing Rules

PCT Applicant's Guide - International Phase