World Intellectual Property Organization

Chapter 2, National Phase of the PCT Applicant's Guide

CHAPTER 2: ENTRY INTO THE NATIONAL PHASE (GENERAL)

Article 11(3)
23
40

2.001.   What is the national phase?  The national phase is the second of the two main phases of the PCT procedure.  It follows the international phase 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 (see International Phase).  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 phase of processing the international application by the designated Office is generally delayed until the termination of the international phase 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 Treaty 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 (see International Phase, 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 itself and the regional Office concerned.  However, certain States party to the ARIPO Harare Protocol or the European Patent Convention have “closed the national route” whereby patent protection can be obtained in those 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 “closed the national route” are designated, the designated Office concerned is always the ARIPO Office or the European Patent Office, respectively (see International Phase, 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 (see 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 (see International Phase, paragraphs 4.022 to 4.026).  The competent designated Office(s) for each Contracting State is (are) set 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 phase, voluntarily withdraws a designation, the Office of or acting for the State whose designation is withdrawn ceases to be a designated Office.

Article 2(xiv)
31

2.004.   When is an Office an elected Office?  Where a demand for international preliminary examination is filed, the term “elected Office” is used – instead of the term “designated Office” – to denote the Office of or acting for a State in which the applicant intends to use 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 phase, or where the applicant fails to pay the preliminary examination fee or the handling fee and, consequently, 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 ceases to be an elected Office.

Article 22(1)
23
39(1)(a)
40

2.006.   How does the national phase start?  The national phase 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 those acts.  He has sole responsibility for performing them in due time.  The consequences of failure to do so are fatal to the application in a number of designated States (see 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 search 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.

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