How can an applicant request restoration of the priority right?
If an international application is filed after expiry of the priority period, a request for restoration of the right of priority under Rule 26bis.3 PCT may be filed with the EPO as receiving Office. A request for restoration of priority may also be filed with the EPO upon entry into the European phase, but its effect will then per se be limited to the grant procedures before the EPO (see points 5.13.017 ff).
OJ 2007, 692
WIPO PCT Guide 5.063-5.069
PCT Newsletter
9/2015, 10,
7-8/2017, 15
If the last day of the priority year falls on a non-working day or an official holiday of the EPO, the priority year expires on the next subsequent working day. Rule 82 PCT concerning delay in receipt of an international application due to irregularities in the mail and Rule 82quater PCT concerning delays due to force majeure are not applicable to the 12-month time limit for claiming priority, since this time limit is not fixed in the PCT.
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the international filing date is within two months from the date on which the priority period expired;
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the request for restoration is filed within the time limit of two months from the date on which the priority period expired;
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the fee for restoration of the right of priority is paid within the same time limit, which is not extended if the EPO acts as receiving Office;
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the request for restoration is supplemented by a statement explaining the reasons for failure to file the application within the priority period together with, where available, any evidence; and
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the failure to file the international application within the priority period occurred in spite of due care required by the circumstances having been taken by the applicant.
If the EPO as receiving Office intends to refuse a request for restoration of the right of priority, further submissions and/or evidence may be filed with the EPO within the time limit of two months from the date on which the first communication was issued (Form PCT/RO/158). Only then, will a final decision be taken and issued (Form PCT/RO/159).
A decision by the receiving Office on a request for restoration of the right of priority is not required for the international search if the application was filed within two months from the date on which the priority period expired, because in that case the priority claim may not be considered void during the international phase (see point 3.2.018). The priority claim continues to serve as the basis for the calculation of all time limits during the international phase, including the time limits for entry into the national phases, i.e. also into the European phase.
WIPO PCT Guide 5.062
If the applicant has not requested restoration of the right of priority in the procedure before the EPO as receiving Office or if the request for restoration has been rejected by the latter, the applicant may file a new request in the national phase, i.e. in the procedures before the EPO (see points 5.13.017 ff) and any other designated Office that has not made a reservation as to the applicability of Rules 49ter.1 PCT and Rules 49ter.2 PCT.
If the EPO as receiving Office has granted a request for restoration, that decision is valid and will not be reviewed in the procedure before the EPO as designated Office (see points 5.13.020-point 5.13.021). If no reservation applies, that positive decision will, as a rule, also be accepted by other designated Offices.
For information as to the Offices that have made a reservation, please refer to the information in the WIPO PCT Guide (see points 1.3.001 ff).
Source: http://www.epo.org/applying/international/guide-for-applicants/html/e/ga_c2_14.html
Date retrieved: 17 May 2021