PCT International Search and Preliminary Examination Guidelines
PART VIII CLERICAL AND ADMINISTRATIVE PROCEDURES
Chapter 22 Clerical and Administrative Procedures
Excuse of Delay in Meeting Time Limits
22.52A Any delay in meeting a time limit is to be excused under Rule 82quater.1 if the International Searching Authority, the Authority specified for supplementary search, or the International Preliminary Examining Authority, as the case may be, is satisfied that the following conditions are met:
(a) the time limit was not met due to war, revolution, civil disorder, strike, natural calamity, epidemic, general unavailability of electronic communication services or other like reason in the locality where the interested party resides, has his place of business or is staying;
(b) the relevant action has been taken as soon as reasonably possible;
(c) the evidence provided by the interested party is in a form acceptable to the Authority, or where a waiver under Rule 82quater.1(d) applies, the statement provided meets the conditions set by the Authority; and
(d) the evidence or statement is received by the Authority not later than six months after the expiration of the time limit applicable in the given case.
In the particular case of general unavailability of electronic communications services, the interested party must establish that the outage affected a widespread geographical area rather than being a localized problem, that it was unexpected or unforeseen, and that there was no alternative communication means available to him. Actions to be performed include the submission of documents, responses to invitations and the payment of fees. Whether the interested party has taken the relevant action “as soon as reasonably possible” is to be judged by the Authority on the facts of the case. Commonly, this would mean within a short period of the cause of the delay ceasing to apply. For example, in cases where a strike prevented an agent from reaching his office, it would be expected that the action should in most cases be taken either the next working day or shortly thereafter, depending on how much preparatory work had been disrupted. On the other hand, where a disaster has resulted in the complete destruction of an agent’s files, it would reasonably be expected to take longer to reassemble all the necessary documents and systems to allow the necessary action to be taken. Rule 82quater.1 does not specifically refer to the action being taken “as soon as reasonably possible after the removal of the cause of the delay”, because an interested party should still be expected to take reasonable steps to overcome problems in cases where it can be seen that the relevant emergency situation will continue for a considerable period and the interested party is not himself prevented by the emergency from taking remedial action. As to the form of evidence acceptable to the Authority, for example, a news report from a reliable mass media outlet, or a statement or announcement from the relevant national authority should normally be acceptable for this purpose. In the case of general unavailability of electronic communications services, a statement from the provider of Internet services or the company providing electricity to the interested party may also be acceptable.
In exceptional circumstances, for example, where the Authority is aware of the occurrence of an event in a particular State or place which would justify an excuse of delay in meeting time limits, it may waive the requirement for evidence (Rule 82quater.1(d)). In this case, it will set and publish the conditions for such a waiver. Where the Authority finds that the conditions are met, no evidence will be required. The interested party must still submit a request for excuse of the delay and state that the failure to meet the time limit was due to the reason to which the waiver applies.
22.52B Rule 82quater.2 allows the International Searching Authority, the Authority specified for supplementary search, and the International Preliminary Examining Authority to provide for the excuse of any delay in meeting time limits due to the unavailability of any of the permitted electronic means of communication at the Authority. If the Authority provides for such an excuse, it notifies the International Bureau, which will publish the information in the Gazette. Moreover, at the time when such an event has taken place (e.g., unforeseen outage) or is scheduled to take place (e.g., scheduled maintenance), the Authority also publishes the information on any such unavailability, including the period of the unavailability, and notifies the International Bureau accordingly.
22.52C Where the International Searching Authority, the Authority specified for supplementary search, or the International Preliminary Examining Authority, as the case may be, provides for the excuse of a delay in meeting time limits under Rule 82quater.2, it excuses any delay in meeting a time limit if:
(a) the applicant indicates, where so required by the Authority, that the time limit was not met due to the unavailability of one of the permitted electronic means of communication at the Authority;
(b) the Authority acknowledges that the said electronic means of communication at the Authority was not available during the period of time concerned; and
(c) the relevant action was performed on the next working day on which the said electronic means of communication became available.
22.52D The Authority should promptly inform the interested party of its decision (using Form PCT/ISA/224 or Form PCT/IPEA/424, as the case may be). It also transmits a copy of the decision and, where applicable, any request and evidence furnished to the International Bureau.