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1828.01 Restoration of the Right of Priority [R-6] - 1800 Patent Cooperation Treaty
1828.01 Restoration of the Right of Priority [R-6]
On April 1, 2007, the regulations to the PCT were amended to allow applicants with applications which were filed on or after that date and which were also filed after the expiration of the 12 month priority period but within two months of the expiration of the priority period, to request that the right of priority be restored, provided that the failure to file the application within the priority period was in spite of due care or unintentional. See PCT Rule 26bis.3. Grantable requests for restoration of the right of priority must be filed within two months from the date of expiration of the priority period as defined by new PCT Rule 2.4, and must be accompanied by: (i) the requisite fee; (ii) a notice under PCT Rule 26bis.1(a) adding the priority claim, if the priority claim in respect of the earlier application is not contained in the international application; and (iii) a statement that the delay in filing the international application within the priority period was unintentional. The Director may require additional information where there is a question whether the delay was unintentional. If the applicant makes a request for early publication under PCT Article 21(2)(b), any of requirements (i), (ii), or (iii) above which are filed after the technical preparations for international publication have been completed by the International Bureau shall be considered as not having been submitted in time.
The International Bureau has indicated that it intends to decide these matters under both the in spite of due care and unintentional standards. Therefore, in view of the fact that the USPTO only decides these matters under the unintentional standard, applicants may wish to consider filing directly with the International Bureau as receiving Office instead of the United States Receiving Office in the situation where applicant desires to request restoration of the right of priority under the in spite of due care standard. Applicants may also request that an application be forwarded to the International Bureau for processing in its capacity as a receiving Office in accordance with PCT Rule 19.4(a)(iii) in situations where applicants, after the international application has been filed, realize that the application was filed after the expiration of the 12 month priority period but within two months of the expiration of the priority period, and where applicant desires to request restoration of the right of priority under the in spite of due care standard. Applications filed with, or forwarded to, the International Bureau must have a foreign filing license.
It must be noted that restoration of a right of priority to a prior application by the United States Receiving Office, or by any other receiving Office, under the provisions of PCT Rule 26bis.3, will not entitle applicants to a right of priority to such prior application in any application which enters the national stage under 35 U.S.C. 371, or in any application filed under 35 U.S.C. 111(a) which claims benefit under 35 U.S.C. 120 and 365(c) to an international application in which the right to priority has been restored. See 35 U.S.C. 119. It must also be noted that even though restoration of such a right will not entitle applicant to the right of priority in a subsequent United States application, the priority date will still govern all PCT time limits, including the thirty-month period for filing national stage papers and fees under 37 CFR 1.495. PCT Article 2(ix), which defines "priority date" for purposes of computing time limits, contains no limitation that the priority claim be valid. Thus, for example, in an international application containing an earliest priority claim to a German application filed thirteen months prior to the filing date of the international application, the filing date of the German application will be used as the basis for computing time limits under the PCT, including the thirty-month time period set forth in 37 CFR 1.495 to submit the basic national fee (37 CFR 1.492(a)) to avoid abandonment, even though applicant would not be entitled to priority to the German application in the United States national phase since the German application was filed more than twelve months from the international filing date. See 35 U.S.C. 119(a) and 365(b).<
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