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Can the Applicant delay PCT National Phase Entry Deadlines?

The PCT national phase application in PCT contracting states/countries is entered within 30/31 months from the earliest priority date claimed by the International application.

Mostly, the applicants hope to wait until a favourable decision is received over their priority application before deciding whether to continue their International Application and enter into PCT National Phase. Some Individual Inventors and small applicants need a longer time to raise funds to enter into PCT National Phase. In such cases, the applicants usually ask whether they can delay PCT national phase entry or can late enter PCT National Phase if the deadline missed.

Unfortunately, the timeline to enter the PCT National Phase in most of the countries cannot be delayed, neither the late PCT National Phase entry cannot be allowed. It is in the applicant's best interest to always strictly adhere to the timeline, but missing deadlines are also not uncommon. Once the deadline is missed, the guidelines for the condonation of delay of individual jurisdictions need to be followed to extend the deadline or condone the delay. Luckily, some jurisdictions do allow for late PCT National Phase entry:

Canada:

The Canadian Patent Office allows late national phase entry of up to 12 months after the 30 months deadline. The applicant can simply pay the fee for late entry at the time of filing the national phase application.

China:

The 2 months additional time to enter the PCT national phase is allowed. The applicant can simply pay the fee for late entry at the time of filing the national phase application.

Europe:

The EPO does allow late regional phase entry after the 31 months regional phase deadline. However, late regional phase entry is not as simple as including an additional late charge. A petition for reinstatement needs to be filed along with supporting declaration and evidence of unintentional delay.

Indonesia:

The 12 months extension is available along with a statement on the reason for the unintentional delay.

Philippines:

Philippine patent office provides one month extension along with the payment of a fee equivalent to 50% of the filing fee.

Singapore:

Singapore provides a 3 months extension from the 30-month deadline. Any reasons for the delay are not required, but paying a fee for each month of delay is necessary.

Thailand:

The PCT national phase entry after the 30 months' timeline can be allowed. If the 30 months deadline for national phase entry is missed, the applicant can submit a statutory declaration or affidavit detailing the reasons the deadline was missed. If the DIP concludes deadline was missed “despite due care having been taken,” the international application will be reinstated in the Thai national phase.

Malaysia:

Malaysia applies the unintentional standard for judging reinstatement requests. If the deadline is missed, a request for reinstatement can be filed including supporting declaration and evidence along with the fee for each month of delay.

Turkey:

The 3 months extension is available to enter the national phase along with the payment of the late entry fee.

Vietnam:

Vietnam allows reinstatement within 6 months of the deadline and must include a declaration explaining the reason behind the un-intentional delay along with the payment of the late entry fee.

USA:

The condonation of unintentional delay in entering the national phase in the USA is allowed. If the deadline has been missed unintentionally, the petition for revival of unintentional delay under 37 CFR 1.137(b) along with the petition fee can be submitted before the USPTO.

Conclusion:
The applicant can delay national phase entry by paying the late fee in some jurisdictions, but most of the jurisdictions have no options to delay national phase entry. In some jurisdictions, it is possible to revive patent applications that have missed the national phase entry deadline due to an omission or error despite all due care being taken by the applicants However, given the onerous standards applied by some jurisdictions, and the often subjective nature of the decision, this is not an option to be relied upon.

I hope the article will help you.

Written By: Vishal Bhardwaj - Founding Partner, Anuation Research & Consulting LLP
Email: [email protected].

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