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FAQs: Rule 49.6 Reinstatement of Rights after Failure to Perform the Acts Referred to in Article 22

1. Contents of Rule 49.6.

2. What is the background to and purpose of Rule 49.6?

If the applicant fails to perform the acts referred to in PCT Article 22 or 39(1) (generally, the furnishing of a translation of the international application and the payment of the national fee) before any designated or elected Office within the applicable time limit, the international application ceases to have the effect provided for in PCT Article 11(3) (that is, the effect of a regular national application) as far as that State is concerned, with the same consequences as the withdrawal of any national application in that State (see PCT Article 24(1)(iii)).

Until Rule 49.6 entered into force (January 1, 2003), the PCT itself provided for the excusing of delays in meeting the time limits under PCT Article 22 and 39(1) only in the particular case of irregularities in the mail service (delay or loss in mail, or interruption in the mail service) under PCT Article 48(1) and PCT Rule 82. In all other cases (that is, not related to irregularities in the mail service), the possibility of excusing a missed national phase entry time limit under PCT Article 22 or 39(1) had to be pursued before each designated or elected Office individually, and in accordance with the existing national laws applicable to such delays in meeting time limits (See PCT Article 48(2) and Rule 82bis).

In determining whether a delay may be excused, each designated or elected Office had to apply the conditions laid down by the applicable national law in the same way and under the same conditions as they are applied to national applications, including any time limit for filing a request to excuse the delay (see PCT Article 48(2)). Examples of national provisions for excusing delays are those that allow for the reinstatement of rights, restoration, restitutio in integrum, revival of abandoned applications, further processing, continuation of proceedings, and so on (see PCT Rule 82bis.2). While the national laws of many designated and elected Offices contain provisions which allow for the excuse of delays in meeting time limits, including the time limits applicable under PCT Articles 22 and 39(1), this was not the case in respect of all designated and elected Offices.

PCT Rule 49.6 specifically provides for the reinstatement of rights of the applicant with respect to the international application, and has the effect of obliging all designated and elected Offices which have not notified the International Bureau that this Rule is incompatible with their national law (see Questions 4 and 5, below), to excuse the delay in meeting the time limit under Article 22 or 39(1) for entry into the national phase if the Office finds that the delay occurred in spite of due care required by the circumstances having been taken or, at the option of the designated or elected Office, was unintentional.

3. Does this Rule apply only to designated Offices and not to elected Offices, noting its references to Article 22?

No, Rule 76.5 also provides for the application of Rule 49.6 to the procedures before the elected Offices.

4. Why is Rule 49.6(f) needed?

Rule 49.6(f) allowed Offices to opt out of the system before January 1, 2003.  It was felt to be necessary because some national laws were not compatible with this Rule at the time of its adoption, and the Contracting States concerned needed time to amend their laws in order to bring them into line with the new Rule. The International Bureau has recommended that any Contracting State, the national law of which is not compatible with Rule 49.6, take action to amend its law in order to make it compatible with that Rule so that any notification made under Rule 49.6(f) could be withdrawn as soon as possible. It should also be noted that it was each Contracting State’s responsibility to assess the compatibility of its national law  with Rule 49.6(a) to (e) at the time of its adoption.

5. Did any Office notify the International Bureau of the incompatibility of Rule 49.6 with its national legislation? If so, where can I find information on which Offices submitted such a notification?

Yes, the International Bureau has received notifications under Rule 49.6(f) from a number of Contracting States and the European Patent Office. This information was published in the PCT Gazette, announced in the PCT Newsletter and collected in a table on the PCT website. The deadline for notifying the International Bureau of the incompatibility of national laws with Rule 49.6(a) was January 1, 2003. Initially, 18 Offices informed the International Bureau accordingly. Some of them have since withdrawn their notifications of incompatibility and now apply Rule 49.6. An updated list of Offices concerned is contained in the table referred to above.

6. Where can I find information about whether a fee is to be paid when requesting the reinstatement of rights and  whether a declaration or any other evidence is required in support of the reasons for the failure to comply with the prescribed time limit under Rule 49.6(c)?

The national chapters in the PCT Applicant’s Guide contain information about any applicable fees and evidentiary requirements relating to the request for reinstatement of rights, to the extent that the Office concerned has informed the International Bureau thereof. Otherwise, applicants are advised to directly check with the Office concerned.

7. How do I find out which criterion (unintentionality or due care) is applied by a particular Office?

The national chapters in the PCT Applicant’s Guide contain this information as far as such information has been provided to the International Bureau.

8. Are designated Offices bound by the specific provisions of Rule 49.6 or are they free to apply even more favorable provisions?

The Committee on Reform of the PCT agreed at its second session (see PCT/R/2/9, paragraph 109)  that the proposed Rule 49.6 would set minimum requirements, it being understood that any designated or elected Office would be free to apply any provisions of the national law applicable to that Office which, from the viewpoint of the applicant, are more favorable than the requirements provided for in proposed Rule 49.6, such as, for example, permitting requests for reinstatement of rights to be filed later than provided for in Rule 49.6(b).

9. What applies in respect of a designated Office which has filed a notification of incompatibility?

Offices which have timely notified the International Bureau (see Question 5 above) are not obliged to apply Rule 49.6. Except for the provisions on delay and loss in the mail (see PCT Rule 82), these Offices are only obliged to apply the provisions of their national law concerning the excusing of delays in meeting time limits also to international applications (see PCT Applicant’s Guide contain this information to the extent that it has been provided to the International Bureau by the Office concerned.

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