PCT Receiving Office Guidelines

Chapter II: General

Irregularities in the Mail Service and Excuse of Delay in Meeting Time Limits

28.  Delay or Loss in the Mail of a Document or Letter Sent by the Applicant. Delay or loss in the mail shall be excused when it is proven to the satisfaction of the receiving Office that the document or letter concerned was mailed at least five days before the expiration of the time limit, provided that the mailing was by registered airmail or, where surface mail would normally arrive at the destination concerned within two days of mailing, by registered surface mail. Evidence of the mailing and, where the document or letter was lost, the substitute document or letter as well as the evidence concerning its identity with the document or letter lost, shall be submitted within one month after the date on which the interested party noticed – or with due diligence should have noticed – the delay or the loss, and in no case later than six months after the expiration of the time limit applicable in the given case (Rule 82.1(a) to (c)).

29.  Use of Delivery Services. Any receiving Office may accept the use of delivery services other than postal authorities and apply the provisions of Rule 82.1(a) to (c) as if the delivery service was a postal authority, provided the details of the mailing were recorded by the delivery service at the time of mailing. If the receiving Office has notified the International Bureau under Rule 82.1(d) that it accepts the use of delivery services other than postal authorities, it must proceed as outlined in that Rule. The receiving Office may, on a case-by-case basis, accept the use of delivery services even if it has notified the International Bureau that it is not prepared to do so in general.

30.  Excuse of Delay in Meeting Time Limits Rule 82quater.1.  For actions to be performed before the receiving Office, any delay in meeting a time limit is to be excused under Rule 82quater.1 if the receiving Office 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 receiving Office, or where a waiver under Rule 82quater.1(d) applies, the statement provided meets the conditions set by the Office;  and

(d) the evidence or statement  is received by the receiving Office 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 receiving Office 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 receiving Office, 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 receiving Office 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 receiving Office 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.

The excuse of delay only applies to time limits fixed in the Regulations and not to the priority period (for restoration of the right of priority, see paragraphs 166A to 166M). The receiving Office should promptly inform the interested party of its decision (Form PCT/RO/132). A copy of the request, any evidence furnished and the decision should be sent to the International Bureau (Section 111).

30A. Excuse of Delay in Meeting Time Limits under Rule 82quater.2. Rule 82quater.2 allows the receiving Office to excuse delays in meeting PCT time limits due to the unavailability of any of the permitted electronic means of communication at the Office. When a receiving Office which offers such excuse of delays becomes aware of planned or unforeseen outages in the electronic means of communication at the Office, it:

(a) publishes information about the unavailability including its duration; and

(b) notifies the International Bureau, which will accordingly publish the information to that effect in the Gazette.

30B. Receiving Offices will excuse delays in meeting time limits for this reason if the following conditions are met:

(a) the applicant indicates, where so required by the receiving Office, that the time limit was not met due to the unavailability of one of the permitted electronic means of communication at the receiving Office;

(b) the receiving Office acknowledges that the said electronic means of communication at the receiving Office 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.

30C. The receiving Office promptly informs the applicant of its decision (Form PCT/RO/132) and sends to the International Bureau a copy of the decision and, where applicable, any request and evidence furnished (Section 111).

30D. Rule 82quater.2 only applies to time limits fixed in the Regulations and not to the priority period.

30E.   Extension of Time Limits Under Rule 82quater.3.  When the State in which the receiving Office is located is experiencing a general disruption caused by an event listed in Rule 82quater.1(a) which affects the operations at the receiving Office and thereby interferes with the ability of interested parties to perform actions before that Office, the receiving Office may decide to establish a period of extension in accordance with Rule 82quater.3.  The receiving Office may make such a decision if it finds that the following two conditions are met:

(1)  the State in which it is located is experiencing a general disruption caused by an event listed in Rule 82quater.1(a) (the disruption does not have to affect the entire State);  and

(2)  the general disruption has affected the operations of the receiving Office and significantly impacted its ability to provide the usual services to the interested parties.

This may be the case, for example, when the State concerned is experiencing an epidemic and the relevant authority has decided to restrict the movements of persons so that a large proportion of the staff of the Office can no longer work on premises.  Another example would be a natural disaster which has caused significant damage to the electronic systems of the receiving Office which it relies on to process international applications.  It may also be the case when the infrastructure (such as electricity supply, water supply or roads) in the place where the receiving Office is located has been seriously damaged due to an earthquake or tsunami and the Office, although still open for business, can only provide limited services to the public.  If the receiving Office has several branch offices but only the operations of one or some of them were affected, it would be left to the discretion of the receiving Office to invoke Rule 82quater.3 according to the circumstances, noting that any period of extension established would apply to actions to be performed before any of the branch offices.

30F.   When the receiving Office makes a determination that establishing a period of extension under Rule 82quater.3(a) is appropriate, it will then need to decide the beginning and end dates of the period of extension.  In this respect, the receiving Office should consider how long the restrictions or limitations to its ability to provide services to the public are likely to last, taking account of the nature of the event, the gravity of the general disruption, possible future developments of the event, and other relevant factors.  The period of extension should be as short as possible and justifiable by the circumstances so that possible delays to subsequent procedures can be minimized.  In any case, it cannot be longer than two months from the date of its commencement.  If the general disruption continues, the receiving Office may establish additional periods of extension under Rule 82quater.3(b), which shall not be longer than two months each time.

30G.   Once a decision to extend or to additionally extend the time limits is made, the receiving Office publishes the information about the beginning and end dates of such period of extension and notifies the International Bureau accordingly.

30H. Where the receiving Office establishes a period of extension or additional period of extension under Rule 82quater.3, any time limit fixed in the Regulations for performing a particular action before the Office which would expire during that period will, subject to Rule 80.5, expire on the first day after the expiration of that period. The applicant does not need to request an extension and the receiving Office does not need to issue any specific decision in this respect in relation to the international application. It should be noted that this Rule does not apply to the priority period since it is not a time limit fixed in the Regulations.