CHAPTER 3: TIME LIMIT FOR ENTERING THE NATIONAL PHASE


GENERAL

Article 2(xi)
22

3.001.   What is the time limit for entering the national phase before a designated Office?  Subject to what is said below, no designated Office may normally process or examine the international application prior to the expiration of 30 months from the priority date and any fees due to a designated Office and any translation of the international application to be furnished to a designated Office will have to be paid and furnished, respectively, only by the expiration of that 30-month period ("priority date" means, where the international application contains a priority claim, the filing date of the application whose priority is claimed, and, where it does not contain such a claim, the filing date of the international application.  Where the international application contains two or more claims, "priority date" means the filing date of the earliest application whose priority is claimed).  In respect of certain designated Offices, the applicable time limit is 20 months, not 30 months because of the incompatibility, for the time being, of the modified PCT provision (PCT Article 22(1)) with the relevant national law;  those Offices made a declaration of incompatibility which will remain in effect until it is withdrawn by the respective Offices.  Furthermore, 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 relevant National Chapters;  a cumulative table is also available from WIPO's website at  www.wipo.int/pct/en/texts/time_limits.html.

Article 2(xi)
39(1)
64(2)

3.002.   What is the time limit for entering the national phase before an elected Office?  If the applicant files a demand for international preliminary examination prior to the expiration of 22 months (or 19 months in respect of certain Offices that have made a declaration of incompatibility with the modified PCT provision (PCT Article 22(1)) from the priority date, the time limit before the expiration of which the applicant must enter the national phase by performing the prescribed acts indicated below is governed for the elected Offices by Article 39(1).  The time limit is normally 30 months from the priority date, the same time limit for entering the national phase as that which applies in the case of a designated Office which has not been elected (see paragraph 3.001).  The national law applied by each elected Office may fix a time limit which expires later than 30 months from the priority date.  The National Chapter (Summary) relating to each elected Office in respect of which an extended time limit applies indicates the length of that time limit as does the table referred to in paragraph 3.001.

3.003.   Are reminders to enter the national phase sent to the applicant by the designated Offices?  What happens if the international search report or the international preliminary examination report is late?  Designated Offices usually do not issue any reminder to applicants that the time limit for entering the national phase is about to expire (or has just expired).  It is therefore the applicant’s responsibility to monitor the applicable time limit(s) in order for the application not to lose its effect before the designated Offices.  The applicant is responsible for timely performance of the acts required for entry into the national phase even if 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) have not been established by the time the applicant has to make a decision about how to proceed (see International Phase, paragraphs 7.023, 7.027, 7.031 and 10.074).


REQUEST FOR EARLIER START OF THE NATIONAL PHASE

Article 23
40

3.004.   Can the national phase start before the expiration of the time limit for entering it?  The PCT provides, in Articles 23 and 40, that national processing may not start before the expiration of the time limits indicated in paragraphs 3.001 and 3.002 unless the applicant makes an express request to the Office concerned that it start the processing and the examination of the international application earlier.  Such a request is not effective, however, unless the applicant has performed the prescribed acts indicated in the following paragraphs.  The attention of applicants is drawn to the information in paragraph 4.028.