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PCT Newsletter 11/2018: Practical Advice

WARNING: Although the information which follows was correct at the time of original publication in the PCT Newsletter, some information may no longer be applicable; for example, amendments may have been made to the PCT Regulations and Administrative Instructions, as well as to PCT Forms, since the PCT Newsletter concerned was published; changes to certain fees and references to certain publications may no longer be valid. Wherever there is a reference to a PCT Rule, please check carefully whether the Rule in force at the date of publication of the advice has since been amended.

Translation of the written opinion/IPRP Chapter I

Q:  I have filed an international application in Chinese, and have already received the written opinion established in Chinese by the National Intellectual Property Administration, PRC (CNIPA) as International Searching Authority, and will not be filing a demand for international preliminary examination.  I am trying to prepare the international application for early entry into the national phase before a number of designated Offices and would like to know whether I will receive a translation of the written opinion of the International Searching Authority into English, and if so, when?

A:  It is recalled that, unless the applicant has filed a demand for international preliminary examination and an international preliminary examination report (IPER) has been or is to be established, the International Bureau (IB) establishes, in accordance with PCT Rule 44bis.1, a report containing the same contents as the written opinion of the International Searching Authority (ISA), entitled the “international preliminary report on patentability (Chapter I of the Patent Cooperation Treaty)”, or IPRP Chapter I.  Normally, the IB communicates that report to each designated Office (in accordance with PCT Rule 93bis.1), but not before the expiration of 30 months from the priority date.  However, where the applicant makes an express request to a designated Office (under PCT Article 23(2)) to enter the national phase early, the IB communicates a copy of the written opinion established by the ISA under Rule 43bis.1 to that Office upon the request of the designated Office or of the applicant.

According to PCT Rule 44bis.3(a), any designated State may, where an IPRP Chapter I has been issued in a language other than the official language, or one of the official languages of its national Office, require a translation of that report into English.  In your case, given that the written opinion that has been established in respect of your international application is in Chinese, any designated Office where Chinese is not an official language may require a translation into English.  If such a translation is required, it will be prepared by, or under the responsibility of the IB (PCT Rule 44bis.3(b)), upon request of the designated Office concerned.  There is no extra fee payable to the IB for the translation of the written opinion into English, as the costs for this service are covered by the international filing fee.

Under normal circumstances, a copy of the translation of the IPRP Chapter I is transmitted to any interested designated Office (and to the applicant) at the same time as the IB communicates the IPRP Chapter I in its original language to the Office(s) concerned, that is, not before the expiration of 30 months from the priority date.  However, if you are going to make an express request to a designated Office or designated Offices for early entry into the national phase under PCT Article 23(2), the written opinion will, upon request of a designated Office, be translated into English by or under the responsibility of the IB (PCT Rule 44bis.3(d)).  Please note that there is no provision for you, as applicant, to request such an early translation of the written opinion directly from the IB. 

The IB will transmit a copy of the translation to the designated Office(s) concerned within two months from the date of receipt of the request for translation (PCT Rule 44bis.3(d)), and you will receive a copy of that translation at the same time, together with Form PCT/IB/310 (“Notification concerning documents transmitted”). 

For information on translations of the IPER or written opinion of the ISA where a demand for international preliminary examination has been filed, please refer to PCT Rule 72.