Entry into the national or regional phase (PCT)

Entry into the national or regional phase is the stage at which the applicant for an international application pursues the procedure before each of the designated or elected Offices, which process the application and decide whether to grant a patent under their own law. It is governed by Articles 22 and 39 of the Patent Cooperation Treaty. For each Office, it brings to an end the international phase of the PCT, during which the application was the subject of a single filing, a search and, where applicable, a preliminary examination.

Time limit for entry

The standard time limit, applicable in almost all States, is thirty months from the priority date, whether or not the applicant has demanded international preliminary examination. Some Offices allow a longer period, such as the European Patent Office (EPO), which applies thirty-one months for the Euro-PCT application. The applicant may also enter the national phase earlier, on express request. During this period, no costs are incurred before national offices, and the applicant can, in light of the international search report and the written opinion, assess the prospects of success and the commercial value of the invention before choosing its countries.

Acts to be completed

Entry into the national or regional phase generally requires filing a translation of the application into the language of the Office, paying the national fee and, depending on the Office, appointing a local representative. Regional offices such as the EPO, the African Intellectual Property Organisation and the Eurasian Patent Organisation make it possible to obtain protection in several States through a single entry. Some States have closed the national route, so that their designation takes effect only through the regional route. This is the case for France, which can only be reached through the European route.

Consequences of late entry

If the required acts are not completed in time, the international application ceases to have effect in the State concerned, under Article 24 of the Treaty, with the same consequences as the withdrawal of a national application. Most Offices allow re-establishment of rights, under either the due care criterion or the unintentional delay criterion, the Regulations under the Treaty leaving the choice between them to each Office. These mechanisms are uncertain and costly, and should not be regarded as an ordinary solution.

Key points

Entry into the national or regional phase, generally at thirty months from priority, is when the costs of international protection are concentrated, since translations and fees must be handled country by country. The time limit is mandatory and missing it results in loss of the application in the State concerned. The list of countries should be settled several months before the deadline, translations should be ordered in good time, and it should be checked for each State whether the national route remains open.

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This glossary entry is general in scope and does not constitute legal advice.

Dhenne Avocats litigates patent disputes before the Paris Judicial Court, the Paris Court of Appeal and the Unified Patent Court. Where the question arises in a real case, the useful moment is almost always before proceedings are issued.

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