P.M.George Kutty

India - Pct National Phase Entry

PCT is the acronym of Patent Cooperation Treaty. It is a sister Treaty of the Paris Convention administered by the World Intellectual Property Organization (WIPO). The PCT facilitates filing of patent applications under a single umbrella and provides for simplified procedure for the search and examination of such applications. There are now over 125 signatory countries to PCT. From December 7, 1998, India is a member of the Paris Convention. The PCT system is a very popular method of filing patent applications throughout the world.

Filing a PCT Application

The PCT applications may be filed either in an approved Receiving Office or directly at the International Bureau at the WIPO in Geneva. The PCT applications usually claim priority from an ordinary patent application, but they may also be filed direct.
On filing a PCT application, applicants must designate the countries in which they wish to retain the option to file a patent application. There is a fee per country designated up to the first 5 and after that any number of further countries may be designated without fee. It is also possible to designate multi-country regional offices such as the ARIPO or EP (European Patent Organisation).

International Phase and National Phase

PCT has two phases, an international phase when they are international applications in the International Bureau, and a national phase when they are converted to national patent applications in the designated countries of interest.
During the international phase, the designated International Searching Authority (a Patent Office authorised by WIPO) conducts a patent search and an International Search Report is provided within around six months of filing to assist the applicant in deciding whether or not to proceed with patent protection. The International Bureau also publishes the patent specification.

Chapters I and II of the PCT

The PCT is divided into two Chapters, Chapter I and Chapter II. Chapter I requires that within either 20 or 30 months of the earliest priority date, (depending on whether or not the country concerned has adopted the most recent amendments to the PCT Treaty), the applicant must enter the national phase, that is, file patent applications in any one or more of the countries initially designated
Chapter II allows 30 months from the earliest priority date for entering the national phase and also requires a designated International Preliminary Examining Authority (authorised by WIPO to conduct international examinations) to conduct a non-binding substantive examination of the patent specification to determine whether it meets the requirements for patentability. Please note that, certain designated Offices have fixed time limits expiring even later than 30 months, or 20 months, as the case may be. For regular updates on these applicable time limits, refer to the PCT Gazette; a cumulative table is also available at WIPO's Internet site (www.wipo.int ).

Entry into the National Phase

The national phase is the second of the two main phases of the PCT procedure. The national phase starts only if the applicant files applications in each country of choice (the "designated Office") just as a usual application would be filed, either before the expiration of the time limit or together with an express request that it start earlier. The applicant has sole responsibility for performing the act in due time. The consequences of failure to do so are fatal to the application in most designated States. In each such designated State the international application has the effect of a national (or regional in the case of regional offices) application as from the international filing date, and the decision to grant

Advantages of the PCT System

The PCT system allows applicants to file a single patent application in one country and for up to 30/31 months retain the option of filing a corresponding application in a large number of other countries of interest. The PCT system can therefore be thought of as an extension of time for filing patent applications world wide at substantially reduced prosecution costs. Furthermore, one can usually tell from the International Search Report and Written Opinion, what the chances are of obtaining patent protection in the other countries. If there appears to be no prospect of obtaining a patent, the international application can be abandoned whereby the applicants lose only the cost of filing a PCT application instead of a much greater cost of filing applications in every other countries of interest. Also, the applicants get 18 months more to test the market to determine whether to proceed with patent applications and indeed to raise capital to fund the filing of regional/national phase applications.

PCT National Phase Entry in India

On September 7, 1998 India (country code: IN) deposited its instruments of accession to the Paris Convention for the Protection of Industrial Property and to the Patent Cooperation Treaty. Since December 7, 1998, it has been possible to designate India in PCT applications and to elect India in the demand for preliminary examination.
If India is a designated country in the PCT application and is also elected in the demand for preliminary examination filed within 19 months of the priority date, then the deadline for entry into the National Phase in India is 31 months from the Priority Date. If the applicant does not so elect India in the demand for preliminary examination, then the deadline for entry into the National Phase in India is 21 months from the Priority Date. Therefore, all applicants who have designated India in their PCT application filed on or after December 7, 1998, will be able to file PCT National Phase applications in India.

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