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Consequences of attempting to file an international application (or documents related thereto) with the International Bureau on a day on which it was unexpectedly closed for business.
Q: On Thursday, 27 October 2011, I wanted to file an international application with the International Bureau as receiving Office (RO/IB) claiming priority of an earlier national application filed on 27 October 2010, which was the last day of the 12-month priority period. I attempted to submit my international application online. However, in the middle of doing so, I received an error message on my screen indicating that the connection was lost. I tried to resubmit the application on Monday, 31 October. Could you tell me whether my attempt on 27 October was successful, and if not, what are the consequences on my right to claim priority from the earlier application?
A: If the connection fails during the submission of an international application to the RO/IB, you will not receive the e-filing receipt which is proof of successful transmission. Therefore, if you get an error message and/or do not receive your e filing receipt at the end of the transmission, you should contact the PCT e-Services Help Desk for advice/assistance (telephone: +41 22 338 9523, e-mail: firstname.lastname@example.org) as it may be necessary to resubmit your application.
In your particular situation, it appears that you were unable to file your international application on 27 October, the date on which the priority period expired. The reason was that, on that day, as well as the following day, WIPO was exceptionally closed for business as a result of an electrical fire, and WIPO’s online filing system was not available. Note that nothing would have prevented you from filing your international application with the RO/IB online (or by fax) on the Saturday or Sunday, in which case you would have been accorded that date of receipt as the international filing date (provided that all the necessary requirements under PCT Article 11 for the according of an international filing date are met), even though those days are officially “non-working days” at the IB.
Your attention is drawn to Article 4C(3) of the Paris Convention for the Protection of Industrial Property, concerning the 12-month priority period, which states: “If the last day of the period is an official holiday, or a day when the Office is not open for the filing of applications in the country where protection is claimed, the period shall be extended until the first following working day”. While the RO/IB would, in this case, consider, for the purposes of the international phase, that the 12-month priority period would be extended until Monday, 31 October 2011, the interpretation of Article 4C(3) and whether an international application has been filed within the priority period is, as is the case for the determination of the validity of the priority claim itself, ultimately made by the designated Office in the national phase.
In the event that it is not possible to file with the RO/IB and that the filing is a first filing that did not claim the priority of an earlier application, it may be especially important that you file your international application as early as possible in order to establish a priority date under the Paris Convention. In such, albeit rare, cases where the RO/IB is closed unexpectedly, it is recommended that you file with your national or regional receiving Office, or that you file with a non-competent receiving Office so that your application will be transmitted to the RO/IB for further processing while maintaining the date of receipt at the non-competent Office as the international filing date (see PCT Rule 19.4) (if attempting to file with another Office online or by fax, you should, of course, ensure that the Office concerned accepts the filing of international applications online or by fax, as the case may be).
Note that on the occasion of the fire at WIPO on 27 October 2011, several other services were not available besides the RO/IB e-filing server — any applicant/agent trying to submit documents relating to an international application via the PCT Online Document Upload Service, make a payment using the PCT E-Payment Service, or use the priority document access service (DAS) or ePCT may have also experienced problems doing so. Please be reassured that PCT Rule 80.5 concerning the extension of time limits applies to PCT time limits by which any document (such as amendments under PCT Article 19 and requests for recording of changes under PCT Rule 92bis) or fee (such as the international filing fee payable to the RO/IB) must reach WIPO. Therefore, in respect of any such documents or fees that were due by 27 or 28 October 2011, any time limit would be considered to have expired on the next subsequent day on which WIPO was open for business, that was, on Monday, 31 October 2011.
It is, as always, strongly recommended that applicants/agents file their international applications or documents, or pay their fees, as early as possible before the expiration of any applicable time limit, in order to avoid any possible problems caused by technical failures.