Relief measures for PCT applications that miss the national phase entry deadline
Countries have different regulations on the entry period for PCT applications, some are 30 months, and some are 31 months. For example, in China, the latest date for entering the Chinese national phase is 32 months from the priority date/international filing date, but a grace fee of 1,000 yuan must be paid at the same time as the entry procedures. In addition, there is no need to go through any other procedures.
Since I started working in the industry, I have counted at least 10 cases in which patent applications failed to successfully enter the national phase in China due to failure to pay grace fees on time. As for China, we have almost strict regulations regarding the last date for PCT applications to enter the Chinese national phase. If you miss the 32-month deadline, there are no other remedial measures. Patent applicants can only watch themselves helplessly. rights are completely lost in China. For companies that want to expand globally, the inability to enforce rights in China will be a major shortcoming in their business landscape.
But if we miss the 30/31 month entry deadline, should we just give up? Page Code today selected the 30 most popular countries for Chinese applicants to explore whether we have other measures if the deadline has expired:
[ South Korea]
The deadline for entering the Korean national phase under PCT is 31 months from the earliest priority. If this deadline is missed, there will be no subsequent relief measures. Therefore, it is necessary to firmly grasp the entry deadline for South Korea.
[ Europe]
The deadline for entering the European national phase under PCT is 31 months from the earliest priority date. If the EPO does not receive the application documents by the expiration of the 31-month period, it will proactively issue a "Noting of loss of rights". Within 2 months from the date of issuance of the notice, the applicant can use the EPO's further processing procedure to pay the officially prescribed fees and fines and go through the procedures for entering the European region.
- Reason for request: all due care
- Difficulty index: ★★
[ USA]
The time limit for PCT to enter the US national phase is 30 months from the earliest priority date. If this time limit is exceeded, a petition for restoration (Petition for Revival) can be submitted to the USPTO. This procedure requires submission of a statement stating that the delayed entry was an "unintentional" error, and an additional request fee is required.
Under normal circumstances, USPTO examiners are more receptive to requests that are overdue for 6 months, and the USPTO is relatively loose on this request. If it has expired, but you still want to enter the United States, we recommend that you first find out that it is overdue. Time to try it out early.
- Reason for request: Unintentional
- Difficulty index: ★★★
[Japan]
The deadline for entering the Japanese national phase under the PCT is 30 months from the earliest priority. If the entry deadline is missed due to reasonable reasons, a reinstatement request can be made within 2 months from the date when the reasonable reasons are eliminated (and no later than 12 months from the expiry date of the national phase entry deadline). However, in practice, the Japan Patent Office’s current review standards for reasonable grounds are very strict, making such recovery very, very difficult. Therefore, Japan’s recovery procedures are not recommended unless absolutely necessary. We also have to be careful about the deadline for entering Japan.
- Reason for request: all due care
- Difficulty index: ★★★★★
[ Germany]
The deadline for entering the German national phase under PCT is 30 months from the earliest priority date. From May 1, 2022, this deadline will be extended to 31 months, which means that applicants will have an additional month to prepare. German translation and other application materials. If this deadline is missed, there will be no subsequent relief measures, similar to South Korea.
[ U.K]
The deadline for PCT to enter the UK national phase is 31 months from the earliest priority date. If you miss this deadline, you can pay the official fee and request restoration within 2 months.
- Reason for request: Unintentional
- Difficulty index: ★★
[ Russia]
The deadline for PCT to enter the Russian national phase is 31 months from the earliest priority date. If you miss this deadline, you can pay the official restoration fee and submit an extension request for a 12-month extension from the expiration date.
- Reason for request: all due care
- Difficulty index: ★★
[ Italy]
The time limit for entering the Italian national phase under PCT is 30 months from the earliest priority date. If this time limit is missed, the time limit can be extended by 2 months through further processing.
- Reason for request: all due care
- Difficulty index: ★★
[Poland]
The deadline for entering the Polish national phase under PCT is 30 months from the earliest priority date. If this deadline is missed, it can be within 2 months from the date of elimination on reasonable grounds (and no later than 6 months from the expiry date of the national phase entry period). month), file a reinstatement request.
- Reason for request: all due care
- Difficulty index: ★★★★★
[ Spain]
The deadline for entering the Spanish national phase under PCT is 30 months from the earliest priority date. If you miss this deadline, you can request a 2-month extension before the expiry date.
- Reason for request: all due care
- Difficulty index: ★★
[Austria]
The time limit for entering the national phase in Austria for PCT is 30 months from the earliest priority date. If this deadline is missed, it can be within 2 months from the date of elimination of reasonable grounds (and no later than 12 months from the expiry date of the time limit for entering the national phase). month), file a reinstatement request.
- Reason for request: all due care and unintentional
- Difficulty index: ★★
[ Israel]
The time limit for entering the Israeli national phase under the PCT is 30 months from the earliest priority date. If this time limit is missed, the Israel Patent Office may allow restoration of this time limit only in certain circumstances. There is no deadline for requesting reinstatement.
- Reason for request: Postal service interruption or unavoidable loss or delay of mail
- Difficulty index: ★★★★★
[ Singapore]
The deadline for PCT to enter the national phase in Singapore is 30 months from the earliest priority date. If you miss this deadline, you can pay the officially designated fee within 18 months after expiry to request restoration of the deadline.
- Reason for request: all due care and unintentional
- Difficulty index: ★★
[ Malaysia]
The deadline for entering the national phase of PCT in Malaysia is 30 months from the earliest priority date. If this deadline is missed, it can be eliminated within 2 months from the date of reasonable grounds (and no later than 12 months from the expiry date of the national phase entry period). month), file a reinstatement request.
- Reason for request: Unintentional
- Difficulty index: ★★
[ Thailand]
The time limit for entering the national phase of PCT in Thailand is 30 months from the earliest priority date. If this time limit is missed, it can be within 2 months from the date of elimination of reasonable grounds (and no later than 12 months from the expiry date of the time limit for entering the national phase). month), file a reinstatement request.
- Reason for request: all due care
- Difficulty index: ★★★★★
[Indonesia]
The deadline for entering the Indonesian national phase under PCT is 31 months from the earliest priority date. If you miss this deadline, you can still extend the entry within 12 months from the expiration date. You need to pay the official extension fee when submitting the extension request. and submit a declaration of deferred entry.
- Reason for request: all due care
- Difficulty index: ★★★
[ the Philippines]
The deadline for PCT to enter the Philippine national phase is 30 months from the earliest priority date. If you miss this deadline, you can pay the official restoration fee and submit an extension request, requesting an extension of 1 month from the expiration date.
- Reason for request: all due care
- Difficulty index: ★
[ Vietnam]
The deadline for entering the national phase of PCT in Vietnam is 31 months from the earliest priority date. If this deadline is missed, the applicant can only request an extension due to force majeure and objective obstacles. The deadline for requesting an extension is not clearly specified.
- Reason for request: force majeure and objective obstruction
- Difficulty index: ★★★★★
[ India]
The deadline for entering the Indian national phase under PCT is 31 months from the earliest priority date. If this deadline is missed, there will be no subsequent relief measures.
[UAE]
The deadline for PCT national phase entry in the UAE is 30 months from the earliest priority date. If this deadline is missed, there will be no subsequent relief measures.
[ Saudi Arabia]
The time limit for entering the national phase of PCT in Saudi Arabia is 30 months from the earliest priority date. If this time limit is missed, it can be within 2 months from the date of elimination of reasonable grounds (and no later than 12 months from the expiry date of the time limit for entering the national phase). month), file a reinstatement request.
- Reason for request: all due care and unintentional
- Difficulty index: ★★★★★
[ Türkiye]
The deadline for entering the Turkish national phase under PCT is 30 months from the earliest priority date. If you miss this deadline, you can submit an extension request and pay the officially designated fee to extend the deadline by 3 months. If the reasons for the extension are sufficient, it may also be possible to enter the national phase after the 33-month period.
- Reason for request: all due care
- Difficulty index: ★★
[ Canada]
The deadline for entering the Canadian national phase under PCT is 30 months from the earliest priority date. If you miss this deadline, you can submit an extension request and pay the officially designated fee to extend the deadline by 12 months.
- Reason for request: Unintentional
- Difficulty index: ★★
[ Mexico]
The deadline for entering the Mexican national phase under the PCT is 30 months from the earliest priority date. If this deadline is missed, there will be no subsequent remedies.
[ Brazil]
The deadline for entering the Brazilian national phase under PCT is 30 months from the earliest priority date. If this deadline is missed, there will be no subsequent relief measures.
[South Africa]
The deadline for entering the national phase of PCT in South Africa is 31 months from the earliest priority date. If you miss this deadline, you can submit an extension request and pay the officially designated fee to extend the deadline by 3 months.
- Reason for request: Unintentional
- Difficulty index: ★★
[ Australia]
The deadline for PCT to enter the Australian national phase is 31 months from the earliest priority date. If you miss this deadline, you can submit an extension request and pay the officially designated fee to request reinstatement. Australia does not have strict regulations on the time limit for entering the national phase of PCT, but it should be restored immediately after the reasonable reasons are eliminated.
- Reason for request: all due care
- Difficulty index: ★★★
[ New Zealand]
The deadline for PCT to enter the New Zealand national phase is 31 months from the earliest priority date. If you miss this deadline, you can submit an extension request and pay the officially designated fee to request reinstatement. New Zealand does not have strict regulations on the time limit for entering the national phase of PCT, but it should be restored immediately after the reasonable reasons are eliminated.
- Reason for request: Unintentional
- Difficulty index: ★★★
[ France]
PCT international applications cannot directly enter the French national phase.
[ Netherlands]
PCT international applications cannot directly enter the Dutch national phase.
To sum up, after missing the 30/31-month deadline, we must not give up easily. There are still many countries that can catch the last train through relief measures. However, everyone needs to understand that relief measures are a remedy for erroneous behavior, not conventional means, and the examiner has discretionary power and does not fully recognize the "reasonable reasons" submitted by the applicant. In other words, not everyone Applications that miss the deadline can be successfully remedied, so they should not be used except as a last resort.