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Issue 11 | March 14, 2002
PCT Preliminary Examination Lives On!


Effective April 1, 2002, PCT applicants in the U.S. will no longer be required to file a Demand for International Preliminary Examination in order to delay commencement of the national stage until thirty months from their priority date. According to the Final Rule published on January 4, 2002, these changes to 37 C.F.R. § 1.495 apply to international applications in which 1) the twenty-month period from the priority date expires on or after April 1, 2002, and 2) the applicant has not yet entered the national stage.

However, twenty-four other countries (including Australia, Brazil, China, United Kingdom, Japan, Korea, and Singapore) have announced that they will not follow the new time limits under PCT Article 22(1) due to incompatibility with their national laws. The February 2000 issue of the PCT Newsletter specifically notes that demands must still be filed for these countries. According to the Frequently Asked Questions section, "If you plan to enter the national phase under Chapter I, you would need to do so before the expiration of 20 months from the priority date in those States which have made notifications to the effect that the modified Article 22 time limit does not apply to them and within 30 months from the priority date in those States in relation to which the Chapter I time limit of 30-months applies. " Therefore, in order to take advantage of national phase postponement for all of the PCT member States, an applicant will still need to file a demand before the expiration of the normal 20 -month deadline.

In related rule changes, 37 C.F.R. § 1.491 has been revised to adopt the statutory definitions of national stage "commencement" and "entry" while 37 C.F.R. § 1.497 has been revised to clarify procedures for correcting inventorship differences between the international and national stages under 35 U.S.C. §371(c)(4).

To discuss this topic further, please contact the author, Bill Heinze, at Thomas, Kayden, Horstemeyer & Risley. The information contained in this email is provided for informational purposes only and does not represent legal advice. Neither the APLF nor the author intends to create an attorney client relationship by providing this information to you through this message.

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