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Patent Cooperation Treaty
Imagine you have an invention. In order to protect your invention from thieves and imitators in today's global economy, you need patent protection in the entire world. Every country has its own laws and you need to comply with those laws. Accordingly, you are required to get patent protection in each individual country you are interested in. If you were required to file an independent patent application in each country of interest even when you didn't know anything about the market success of your invention in that country, it would require a large investment to meet costs towards filing fees, translation charges and attorney fees. Further, you would be forced to make up your mind in a short time to file in various countries, whether they were relevant or not. Wouldn't it be nice and convenient if you could file a single application with an international organization designating several countries of your interest and have the ability to file your application in only few of the initially designated states later, without losing any rights? Fortunately, the answer is "yes, you can, thanks to PCT."
The patent cooperation treaty (PCT) is a multilateral treaty that came into force in 1978. Through PCT, an inventor of a member country (Contracting state of PCT can simultaneously obtain priority for his/her Invention in all/ any of the member countries, without having to file a separate application in the countries of interest, by designating them in the PCT application. All activities related to PCT are coordinated by the World Intellectual Property Organization (WIPO) located in Geneva. Bhaarat (the Indian Union) joined the PCT on December 7, 1998; four years after communist China and twenty years after America, Russia and other first world countries joined the treaty. The PCT offers an alternative route to filing patent applications directly in the patent offices of those countries, which are Contracting States of the PCT. It does not preclude taking advantage of the priority rights and other advantages provided under the Paris Convention and the WTO administered Agreement on Trade-Related Aspects of Intellectual Property (TRIPS Agreement). The PCT provides an additional and optional foreign filing route to patent applicants.
The citizens/residents of different member countries, seeking grant of a Patent in more than one member country, can file an 'International Application (IA)'. The IA must be filed in the prescribed receiving Office (RO). The RO functions as the filing and formalities review organization for IAs. Each contracting state designates the national patent office and/or any other offices as ROs for receiving patent applications. The United States Patent and Trademark Office and the International Bureau of the World Intellectual Property Organization will also act as a Receiving Office for U.S. residents and nationals. Indian nationals and residents are eligible to file in the Patent Office, Kolkata, and its branch offices at New Delhi, Mumbai, Chennai and the International Bureau, Geneva, Switzerland.
Thus, the Patent Cooperation Treaty (PCT) enables the U.S. applicant to file an IA in a standardized format in English in the U.S. Receiving Office (the U.S. Patent and Trademark Office), and have that application acknowledged as a regular national or regional filing in as many Contracting States to the PCT as desired, for IAs filed on or after January 1, 2004. The filing of an IA will automatically constitute the designation of all contracting countries to the PCT on that filing date. Consequently, the PCT enables foreign applicants to file a PCT IA in their home language in their home patent office and have the application acknowledged as a regular U.S. national filing.
However, such applications are subject to 'International Search' for the establishment of prior art. These applications are referred to International Searching Authorities (ISA) appointed to carry out the patent search on a global basis. ISA is usually the National Patent Office, which fulfills the criteria of having access to patent literature of various countries from 1920 onwards. The basic functions of the International Searching Authority (ISA) are to conduct a prior art search of inventions claimed in IAs; it does this by searching in at least the minimum documentation defined by the Treaty and for IAs filed on or after January 1, 2004, to issue a written opinion, which will normally be considered to be the first written opinion of the International Preliminary Examining Authority where international preliminary examination is demanded. Competent International Searching Authorities (ISAs) for Bhaarat are ATPO, AUPO, CNPO, EPO, SEPO and USPTO. In case the Receiving Office is also an ISA, e.g., for American citizens/residents, USPTO is the RO as well as the ISA, a separate referral is not required. The inventor benefits by the search report (and written opinion for IAs filed on or after January 1, 2004). Under the PCT, an inventor could delay filing individual national applications from 20 to 31 months, and the applicant may drop the applications in case of an adverse report from the ISA. It saves upon the time for processing the patent application and money paid as professional fee (for Patent Agents/Attorneys) in different countries.
A search report on the patent application filed with a receiving office is received by the applicant/inventor 16 months after the priority date which is nothing but the date of submitting the application in the receiving office. The International Bureau of the WIPO publishes the application and the search report 18 months after the priority date. The original application is then sent to the designated offices indicated in the application. Within two months of this i.e. by the 20th month, the applicant will have to formally apply to the patent offices of these countries for grant of patents by paying official fees and completing other formalities stipulated by these offices (some countries). In case translated copies of the application are required, the same has to be furnished by the applicant. In spite of submitting the request for grant of patents in designated countries in the 20th month after the priority date, the priority in these countries is the same as the date of filing the original PCT application.
There is also a provision to get a patent application examined by International Preliminary Examining Authorities (IPEAs) such as USPTO, EPO or JPO. Thus, the inventor could also opt for preliminary examination before filing in other countries. If applicant/inventor has requested for an examination report, the report is usually received by the applicant /inventor about 28 months after the priority date. Within two months of this, the applicant/inventor will have to formally apply for grant of patents in designated countries. The priority of the application is maintained in the PCT countries.
For more information on PCT and IAs and fees, visit:
http://www.uspto.gov/web/offices/pac/mpep/documents/1800.htm#chap1800 and http://ipindia.nic.in/ipr/patent/pct.htm.
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