PCT AG-IP 6.025 What defects influence the international filing date?

6.025.   What defects influence the international filing date?

(i)  Where the receiving Office finds that the international application does not comply with the requirements for according an international filing date – in other words:

Article 11(1)(i)

(a) that the applicant obviously lacks, for reasons of residence and nationality, the right to file an international application with the receiving Office (but see also paragraphs 6.035 and 6.036);

Article 11(1)(iii)(a)

(b) that the international application does not contain an indication that it is intended as an international application;

Article 11(1)(iii)(b)

(c) that the international application does not contain a request which constitutes the designation of all Contracting States bound by the PCT on the international filing date (under
Rule 4.9(a) – see paragraph 5.052);

Article 11(1)(iii)(c)

(d) that the international application does not contain the name of the applicant or does not contain at least the minimum indications concerning the name of the applicant which are indicated in paragraph 6.005(iii)(c);

Article 11(1)(iii)(d)and (e)

(e) that the international application does not contain a part which, on the face of it, appears to be a description and a part which, on the face of it, appears to be a claim or claims;

Article 11(1)(ii)
Rule 19.4
20.3
20.6
20.7

the receiving Office invites the applicant to correct the defect.  The time limit for filing the correction is two months from the date of the invitation to correct.  If the correction is made within the time limit, the date of receipt of the correction becomes the international filing date;  otherwise, the application is not treated as an international application (but see also paragraphs 6.035 and 6.036 in relation to the applicant’s residence and nationality, and paragraphs 6.013 to 6.020 for applications filed in a language which is accepted by the receiving Office but which is not both a language accepted by the International Searching Authority which is to carry out international searching, and a language of publication).  Where the defect concerns item (i)(e) above, the receiving Office will invite the applicant to confirm in accordance with Rule 20.6 that the missing element concerned was incorporated by reference under Rule 4.18 (see paragraphs 6.027 to 6.031), in which case it may be possible to retain the earlier date as the international filing date.  Where the required elements of the international application are not in a language accepted by the receiving Office, that Office will transmit the international application to the International Bureau as receiving Office under Rule 19.4 (noting that the International Bureau as receiving Office is prepared to accept international applications filed in any language;  see paragraph 6.034 and Annex C).

Article 14(2)
Rule 20.5(e)
20.7

(ii)  Where the receiving Office finds that parts of the description, claims, all drawings or parts thereof are, or appear to be, missing, it notifies the applicant accordingly and invites the applicant to correct the defect or else, where appropriate, to confirm in accordance with Rule 20.6 that the missing part was incorporated by reference under Rule 4.18 (see paragraph 6.027 to 6.031 for details).  The time limit for furnishing such missing parts is two months from the date of the invitation.  If there is no such invitation and if the applicant notices and wishes to correct the defect on his own initiative, this is also permitted within a time limit of two months from the date on which papers were first received by the receiving Office.  If the missing parts are furnished within that time limit, the date of their receipt becomes the international filing date, unless the applicant is able to confirm in accordance with Rule 20.6 that the missing part concerned was incorporated by reference under Rule 4.18 (see paragraphs 6.027 to 6.031), in which case it may be possible to retain the earlier date as the international filing date.  Where missing drawings referred to in the international application are not furnished within the time limit, any references to drawings in the international application are considered non-existent and the international filing date remains as originally accorded.  Note, however, that, where the international filing date is corrected to a later date, any priority claim will be considered void, for the purposes of the procedure under the PCT, if the accorded international filing date falls outside the two month period after the expiration of the priority period of the priority claim concerned (see paragraphs 5.060 and 6.038).  Where the international filing date has been corrected, the applicant may, in a notice submitted to the receiving Office within one month from the date of mailing of the notification of later submitted parts (Form PCT/RO/126), request that the missing part be disregarded in order to preserve the date on which papers were first received as the international filing date and, where applicable, to retain the priority claim (Rule 20.5(e)).

Source: http://www.wipo.int/pct/en/appguide/text.jsp?page=ip06.html

Date retrieved: 24 November 2017

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