What’s the national phase entry deadline?
It seems a simple enough question, but we hear it often enough that we thought we’d address it.
The deadline by which you need to enter the national phase is either 30 or 31 months from the earliest filing or priority date associated with the PCT application. The choice of 30 or 31 month period is set by individual countries, and significant numbers of major countries use each period. For example, the US and Canada are 30 month countries, whereas Europe and Korea are 31 countries.
The 30/31 month periods are measured from:
the filing date of the earliest patent application to which the PCT application claims priority under the Paris Convention; or
the International filing date of the PCT, if no Paris Convention priority was claimed.
Unfortunately, this deadline is relatively firm in nearly all countries. If it is missed, the PCT application usually cannot enter the national stage. However, there are a number of countries that offer some relief in this respect.
Canada offers a generous one year late-filing period. To use this, it is simply a matter of paying a small additional government fee at the time of filing, any time in the 12 month period following the 30 month deadline.
In China, the 30 month deadline can be extended by two months upon payment of a surcharge. It’s important to note that, although the deadline is delayed by two months, it is necessary to file the translation with the rest of the national phase documents. Care should therefore be taken provide instructions early enough that the translation can be prepared in time. For a typical 30 to 40 page specification, a month’s notice is fairly comfortable
The European patent office allows revival of applications that have failed to enter the European regional phase by the 31 month deadline. However, this is not a cheap option, as the European patent office adds a surcharge to the official fees of more than 50%. Given how expensive the European official fees already are, this can make late filing into Europe an expensive proposition. However, the importance of Europe as a filing destination could make the additional expense worthwhile.
Elsewhere, it might be possible to revive applications that have missed the national stage deadline due to an omission or error in spite of all due care being taken by the applicant and its representatives. However, given the onerous standards applied by many countries, and the often subjective nature of the decision, this is not an option to be relied upon.
Indeed, some countries offer no revival right at all. Japan, for example, simply does not have any mechanism by which an application that has missed the national phase deadline can be revived under any circumstances.
LATE-FILING OF TRANSLATIONS
Assuming an English language PCT application, the majority of translation countries offer a period of one or two months (after either the national phase entry deadline, or national phase entry itself) within which the translation can be filed. We use these extensions ourselves quite frequently if we can’t get instructions early enough to comfortably complete the translation by the deadline. There’s an additional cost (usually $100-200) in most countries for taking this option.
Please contact us if you’d like more information about national phase deadlines.