TABLE OF CONTENTS
PCT APPLICANT’S GUIDE—NATIONAL PHASE Paragraphs CHAPTER 1: HOW TO USE THE NATIONAL PHASE OF THE PCT APPLICANT’ 1.001 – 1.006
CHAPTER 2: ENTRY INTO THE NATIONAL PHASE (GENERAL)..................... 2.001 – 2.006
CHAPTER 3: TIME LIMIT FOR ENTERING THE 3.001 – 3. 3.001 – 3.003
Request for Earlier Start of the 3.004
CHAPTER 4: ACTS TO BE PERFORMED FOR ENTRY INTO THE NATIONAL PHASE .... 4.001 – 4. 4.001 – 4.004
4.005 – 4.007
Translation of the . 4.008 – 4.026
十大蓝牙耳机品牌Copy of the 4.027 – 4.028
Choice of Certain Kinds 4.029
Naming 4.030 – 4.031
U of 4.032
CHAPTER 5: SPECIAL REQUIREMENTS TO BE COMPLIED WITH IN CONNECTION
WITH THE . 5.001 – 5.010
< 5.001 – 5.002
Certain Declarations Concerning the Inventor,. 5.003 – 5.005
<. 5.006 – 5.008
Priority Document:Copy 5.009 – 5.010
CHAPTER 6: MISCELLANEOUS QUESTIONS CONCERNING THE 6.001 – 6.033 Substantive Conditions 6.001
Correction 6.002 – 6.003
Restoration of the Right 6.004 – 6.011
Incorporation by Reference of Missing Elements 6.012
Amendment of the International Application for the 6.013 – 6.017
Review in the National Pha of Certain Decisions Made During the International
<. 6.018 – 6.021
Excusing of Delays in Meeting . 6.022 – 6.027
Rectification of Errors Made by the Receiving Office or by the International
< 6.028 – 6.029
Acts to Be Performed During the 6.030
Correspondence with and Payments to 6.031
Deposit of 6.032
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Furnishing of a Nucleotide and/or Amino Acid 6.033 NATIONAL CHAPTERS
(14 January 2010)
CHAPTER 1
HOW TO USE THE NATIONAL PHASE OF THE PCT APPLICANT’S GUIDE
1.001. This part of the PCT Applicant’s Guide (the Guide) contains information on the “national pha” of the PCT procedure, namely the procedure before the designated (or elected) Offices. It follows on from information on the “international pha” of the PCT procedure.
1.00
2. This part consists of two elements. First, this text which explains in detail what must be done by the applicant in connection with entry into the national pha.
1.003. Following this are National Chapters relating to all designated (or elected) Offices. Each National Chapter is structured as follows:
(i) Title page–containing a table of contents and a list of abbreviations;
(ii) Summary–containing a listing of the specific requirements of each designated (or elected) Office which must be complied with in connection with entry into the national pha as outlined below;
(iii) The procedure in the national pha–containing an outline of the main procedural steps before the Office concerned once the national pha has started, further details relating to certain particular requirements referred to in the Summary and information about the fees that must be paid and national forms that may or must be ud by the applicant in connection with entry into the national pha or during the national pha;
(iv) Annexes–containing a schedule of the fees referred to in the National Chapter, an explanation on how payment of fees can be made to the Office and samples or models of forms for u by the applicant in the national pha (photocopies of tho forms are accepted by the Offices concerned).
1.004. In the text of the Guide, “Article” refers to Articles of the PCT, “Rule” refers to the PCT Regulations and “Section” refers to the PCT Administrative Instructions. Any u of tho expressions in the text of the National Chapters is followed by an indication of whether they relate to the PCT or to national legislation. References to a “paragraph” relate, unless otherwi specified, to t
he text of the National Pha.
1.005. The Office that is competent for each PCT Contracting State which may be designated (or elected) is usually the national Office of the State concerned. For States party to the ARIPO Harare Protocol, the Eurasian Patent Convention or the European Patent Convention, the national pha procedure takes place before the national Office and/or the regional Office concerned (the ARIPO Office, the Eurasian Patent Office or the European Patent Office, respectively), depending on the kind of designations (for national protection and/or for a regional patent) which were made. (As to regional patent systems, e International Pha, paragraphs 4.022 to 4.026). For certain States party to the ARIPO Harare Protocol or the European Patent Convention which have “clod the national route,” the national pha takes place exclusively before the ARIPO Office or the European Patent Office, respectively (e paragraph
2.002 of this part). Where the national law of a PCT Contracting State provides for patent protection through the extension of a European patent, the national pha takes place, in effect, before the European Patent Office (e International Pha, paragraph 5.054). For all States party to the OAPI Agreement the national pha takes place exclusively before the OAPI Office (e International Pha, paragraphs 4.022 to 4.026 and paragraph 2.002 below). Annexes B contain information as t
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o the competent designated Offices for each Contracting State.
1.006. The draft of each Chapter dealing with an Office (national or regional) in its capacity as designated (and elected) Office has been approved by that Office. Naturally, the Chapters still may not deal with all the questions that could emerge. Moreover, practices and rules may change, and in any ca, the only authentic sources are the laws, rules and regulations. While any correction, completion or updating will be effected as soon as possible, applicants are nevertheless advid to u the rvices of local patent attorneys or patent agents, who expert knowledge and experience cannot be replaced by any written text.
(14 January 2010)
Page 2 PCT Applicant’s Guide – National Pha
(14 January 2010)
CHAPTER 2
ENTRY INTO THE NATIONAL PHASE
(GENERAL)
Article 11(3)
23
40 2.001. What is the national pha? The national pha is the cond of the two main phas of the PCT procedure. It follows the international pha and consists in the processing of the international application before each Office of or acting for a Contracting State that has been designated in the international application (e International Pha). In each designated State the international application has the effect of a national (or regional) application as from the international filing date, and the decision to grant protection for the invention is the task of the Office of or acting for that State (the “designated Office”). The national pha of processing the international application by the designated Office is generally delayed until the termination of the international pha on the expiration of the time limits indicated in paragraphs 3.001 and 3.002.
Article 2(xiii)
4 2.002. When is an Office a designated Office? The national Office of a Contracting State is a “designated Office” if the State is “designated” in the international application for national protection. The filing of a request constitutes the designation of all Contracting States that are bound by the Tre
aty on the international filing date. However, some States may be excluded from this all-inclusive designation where they have notified the International Bureau that Rule 4.9(b) applies to them (e International Pha, paragraph 5.053). Where a PCT Contracting State is party to the ARIPO Harare Protocol, the Eurasian Patent Convention or the European Patent Convention and is designated for a regional (ARIPO, Eurasian or European) patent, the regional Office concerned (the ARIPO Office, the Eurasian Patent Office or the European Patent Office) is the designated Office. Where a State party to the ARIPO Harare Protocol, the Eurasian Patent Convention or the European Patent Convention is designated twice, namely both for national protection and for a regional patent, there are two designated Offices for that State–the national Office of the State itlf and the regional Office concerned. However, certain States party to the ARIPO Harare Protocol or the European Patent Convention have “clod the national route” whereby patent protection can be obtained in tho countries via an international application only by way of a designation for a regional (ARIPO or European) patent. If any of the States that have “clod the national route” are designated, the designated Office concerned is always the ARIPO Office or the European Patent Office, respectively (e International Pha, paragraphs 4.022 to 4.026). The European Patent Office is also, in effect, the designated Office where patent protection is desired for a designated State through the extension of a European patent to that State, a possibility which is only available for countries which
have a corresponding agreement with the European Patent Organisation (e Annex B(EP) and the National Chapter (Summary) relating to the European Patent Office). Where States party to the OAPI Agreement are designated, the OAPI Office, by virtue of the provisions of that Agreement, is always the designated Office (e International Pha, paragraphs 4.022 to 4.026). The competent designated Office(s) for each Contracting State is (are) t out in Annexes B.
Article 24(1)(i)
and (ii) Rule 90bis.2 2.003. Where the applicant, before the expiration of the time limit for entering the national pha, voluntarily withdraws a designation, the Office of or acting for the State who designation is withdrawn ceas to be a designated Office.
Article 2(xiv)
李子瑞31 2.004. When is an Office an elected Office? Where a demand for international preliminary examination is filed, the term “elected Office” is ud–instead of the term “designated Office”–to denote the Office of or acting for a State in which the applicant intends to u the results of the international preliminary examination. Since only designated States can be elected, all elected Offices are necessarily also designated Offices.
Article 37 Rule 90bis.4 2.005. Where the demand is withdrawn prior to the date on which examination or processing may start in the national pha, or where the applicant fails to pay the preliminary examination fee or the handling fee and, conquently, the demand is considered as if it had not been submitted, the Office of or acting for the State which has been elected in the demand ceas to be an elected Office.
PCT Applicant’s Guide – National Pha Page 3
(14 January 2010)
Article 22(1)
23
39(1)(a)
40 2.006. How does the national pha start? The national pha starts only if the applicant performs certain acts, either before the expiration of a certain time limit or together with an express request that it start earlier. The applicant should not expect any notification inviting
him to perform tho acts. He has sole responsibility for performing them in due time. The conquences of failure to do so are fatal to the application in a number of designated States (e paragraphs 4.003 and 4.004). It should be noted that the acts must be performed in due time even if, for some reason, the international arch report and the written opinion of the International Searching Authority or the international preliminary report on patentability (Chapter I or II of the PCT) are not yet available. Details of the acts to be performed and the applicable time limits are given in the following paragraphs.
Page 4 PCT Applicant’s Guide – National Pha
(14 January 2010)
CHAPTER 3
袄裙TIME LIMIT FOR ENTERING THE NATIONAL PHASE
GENERAL
Article 2(xi)
22 3.001. What is the time limit for entering the national pha before a designated Office? Subject to what is said below, no designated Office may normally process or examine the international application prior to the expiration of 30 months from the priority date and any fees due to a designated Office and any translation of the international application to be furnished to a designated Office will have to be paid and furnished, respectively, only by the expiration of that 30-month period (“priority date” means, where the international application contains a priority claim, the filing date of the application who priority is claimed, and, where it does not contain such a claim, the filing date of the international application. Where the international application contains two or more claims, “priority date” means the filing date of the earliest application who priority is claimed). In respect of certain designated Offices, the applicable time limit is 20 months, not 30 months becau of the incompatibility, for the time being, of the modified PCT provision (PCT Article 22(1)) with the relevant national law; tho Offices made a declaration of incompatibility which will remain in effect until it is withdrawn withdrawn by the respective Offices. Furthermore, certain designated Offices have fixed time limits expiring even later than 30 months, or 20 months, as the ca may be. For regular updates on the applicable time limits, refer to the relevant National Chapters; a cumulative table is also available from WIPO’s website at www.wipo.int/pct/en/texts/time_limits.html.
播种季节Article 2(xi)
39(1)
64(2) 3.002. What is the time limit for entering the national pha before an elected Office? If the applicant files a demand for international preliminary examination prior to the expiration of 22 months (or 19 months in respect of certain Offices that have made a declaration of incompatibility with the modified PCT provision (PCT Article 22(1)) from the priority date, the time limit before the expiration of which the applicant must enter the national pha by performing the prescribed acts indicated below is governed for the elected Offices by Article 39(1). The time limit is normally 30 months from the priority date, the same time limit for entering the national pha as that which applies in the ca of a designated Office which has not been elected (e paragraph 3.001). The national law applied by each elected Office may fix a time limit which expires later than 30 months from the priority date. The National Chapter (Summary) relating to each elected Office in respect of which an extended time limit applies indicates the length of that time limit as does the table referred to in paragraph 3.001.
3.003. Are reminders to enter the national pha nt to the applicant by the designated Offices? What happens if the international arch report or the international preliminary examination report is late? Designated Offices usually do not issue any reminder to applicants that the time limit for enteri
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ng the national pha is about to expire (or has just expired). It is therefore the applicant’s responsibility to monitor the applicable time limit(s) in order for the application not to lo its effect before the designated Offices. The applicant is responsible for timely performance of the acts required for entry into the national pha even if the international arch report and the written opinion of the International Searching Authority or the international preliminary report on patentability (Chapter I or II of the PCT) have not been established by the time the applicant has to make a decision about how to proceed (e International Pha, paragraphs 7.023, 7.027, 7.031 and 10.074).
REQUEST FOR EARLIER START OF THE NATIONAL PHASE
Article 23
40 3.004. Can the national pha start before the expiration of the time limit for entering it? The PCT provides, in Articles 23 and 40, that national processing may not start before the expiration of the time limits indicated in paragraphs 3.001 and 3.002 unless the applicant makes an express request to the Office concerned that it start the processing and the examination of the international application earlier. Such a request is not effective, however, unless the applicant has performed the
prescribed acts indicated in the following paragraphs. The attention of applicants is drawn to the information in paragraph 4.028.
PCT Applicant’s Guide – National Pha Page 5
(14 January 2010)
CHAPTER 4
ACTS TO BE PERFORMED FOR ENTRY INTO THE NATIONAL PHASE
GENERAL
Article 22(1)
4.001. What must be done by the applicant before the start of the national pha? The following acts must be performed (if applicable):
(i) payment of the national fee (e paragraphs 4.005 to 4.007);
(ii) furnishing of a translation, if prescribed (e paragraphs 4.008 to 4.026);
土豆怎么去皮(iii) in exceptional cas (if a copy of the international application has not been communicated to the designated Office under Article 20), furnishing of a copy of the international application, except where not required by that Office (e paragraphs 4.027 and 4.028);
(iv) in exceptional cas (if the name and address of the inventor were not given in the request when the international application was filed, but the designated Office allows them to be given at a time later than that of the filing of a national application), furnishing of the indication of the name and address of the inventor (e paragraphs 4.030 and 4.031). Article 27(1), (2),
(6) and (7)
Rule 51bis
4.002. There may be acts in addition to tho described in paragraph 4.001 which must be performed for the international application to proceed in the national pha, but none of tho acts, which are described further below and in the National Chapter relating to each designated Office, has to be performed within the time limit for entering the national pha. Article 24(1)(iii)
39(2)
4.003. What are the conquences of failure to perform the acts required for entry into the national pha? The conquences where, on expiration of the applicable time limit for entering the national pha, the required acts have not (all) been performed, are that the international application los the effect of a national application and the procedure comes to an end in respect of each Office before which they have not (all) been performed. Non-performance of the required acts in respect of one Office does not alter the effect of the international application before the other Offices. The automatic loss of the effect relieves the applicant, where he decides not to pursue the international application in the national pha, of the need to expressly withdraw the international application or the designation or election of a certain State. Article 48(2)
Rule 49.6
82bis
4.004. Where the applicant fails to perform the required acts in time, he may ask the designated Office to maintain the effect of the international application and to excu the delay (e paragraphs 6.022 to 6.027). NATIONAL
FEES Article 22(1)
39(1)(a)
Rule 49.1(a)(ii)
76.5
4.00
5. What fees must be paid for entry into the national pha and when? The fees to be paid for entry into the national pha are indicated in each National Chapter (Summary and fees annex). They must be paid in the currencies and within the time limits that are also indicated there. If annual or renewal fees have become due by the time the national pha could start, they must be paid before the expiration of the time limit applicable for entering the national pha. The National Chapters t out this information.
4.006. How can payment of national fees be effected? The fees annex to each National Chapter contains this information. 4.007. Does the applicant have the right to claim the exemption, reduction or refund of national
fees? The exemption, reduction or refund of national fees is granted by various designated Offices.
Each National Chapter (Summary) contains information on whether fee exemptions, reductions or refunds can be claimed and, if so, under what circumstances and in what amounts.
