The Treaty (PCT), which was born in 1970s, is a special agreement open to the members of the Paris Convention. It stipulates a unified procedure for applying for patents in contracting States: submit a PCT international application within 65,438+02 months after submitting a national application, designate the country to be protected, and claim the priority stipulated in the Paris Convention.
Let's first review the obvious advantages of PCT, such as:
1. Simplify the application procedure.
You can apply for a patent in many countries only by submitting an international patent application, instead of submitting a patent application to each country separately.
2. Postpone decision-making time
Through PCT, the patent applicant can go through the formalities of international patent application entering each country within 20 months after filing the patent application for the first time; If it is necessary to conduct international preliminary examination, you can also go through the formalities for international patent application to enter various countries within 30 months from the date of filing the patent application for the first time.
3. Improve the application efficiency
By applying for a patent through PCT, you can get a high-quality international preliminary examination or international search report, which can help the applicant to judge whether the patent has a good prospect and is expected to become a "strong" patent, thus helping the applicant to judge whether it has entered the national stage.
4. Reduce the burden of national bureaus of member countries.
In some countries, the national fees for international patent applications are lower than those for ordinary applications.
Since 1994 joined the PCT, the number of patent applications submitted by China applicants through PCT has increased year by year, which is followed by many problems about PCT applications. Today, the author will talk to you in detail about when the PCT application can be modified.
According to the PCT regulations, the application documents can be modified in the international phase and the national phase. The following are introduced separately.
1
International stage
First modification opportunity
The following is the original text of the Patent Cooperation Treaty:
Article 19 proposes amendments to the patent right to the international bureau.
(1) After receiving the international search report, the applicant has the right to file an amendment to the patent claim of the international application with the International Bureau within the prescribed time limit. The applicant may submit a short statement at the same time according to the provisions of the detailed rules, explaining the above amendments and pointing out the possible impact on the specification and drawings.
(2) The modification shall not exceed the scope of the invention disclosure when the international application is filed.
Twenty-sixth opportunities to make corrections to the designated bureau
Any designated agency shall not refuse an international application on the grounds that it does not meet the requirements of this Treaty and the detailed rules before giving the applicant an opportunity to correct the international application in accordance with the scope and procedures stipulated by domestic law that allow the correction of national applications in use or similar situations.
Tip: Before the international search, the applicant has no right to modify the international application except to correct the obvious mistakes. Two months after the international retrieval report (ISR) is sent to the International Bureau and the applicant, or 16 months from the priority date (whichever is the last deadline), the applicant may amend the claim according to the above-mentioned article 19 (the description and drawings cannot be amended).
The revised application documents shall be submitted to the International Bureau together with the amendment statement (including an explanation of the contents and basis of the amendment). After receiving the revised materials, the International Bureau will further issue a correction notice if it thinks that the revised statement is not fully expressed.
Second modification opportunity
The following is the original text of the Patent Cooperation Treaty:
Article 34 Procedures of the international preliminary examination entity
(2)(b) Before making the international preliminary examination report, the applicant has the right to amend the patent claim, specification and drawings in the prescribed manner and within the prescribed time limit. When filing an international application, such modification should not go beyond the scope of the invention disclosure.
Since the deadline for revision is before the international preliminary report is made, this provides the applicant with sufficient time for revision, and it can be revised many times. Modification requires submission of the modified replacement page by letter, and at the same time, the relationship between the replacement page and the replacement page should be explained (except for the whole page modification and deletion). If the contents introduced by the applicant go beyond the scope disclosed when submitting the PCT application, the amendment will be deemed invalid.
2
National stage
Here we should distinguish two terms: designated bureau and selected bureau.
Designated office: the country or intergovernmental organization designated by the applicant in the international application as a contracting state requesting the country to protect its invention.
Selection bureau: the member state or intergovernmental organization designated by the applicant in the request for international preliminary examination to use the results of international preliminary examination.
I still don't understand the concept, and then the author will explain it in detail.
As a result of applying for a patent through PCT, after the application enters the national stage, the procedure of granting a patent right is still implemented by the patent offices of member countries. Only those countries designated by the applicant in the application can be protected, and the national bureau of the designated country is called the designated bureau.
Considering the different requirements of patent laws in different countries for granting patents, patents in some countries do not need substantive examination. Therefore, the international preliminary examination procedure in Chapter II of the Patent Cooperation Treaty is optional and only takes effect in countries that conduct substantive examination of patents; If the applicant chooses the international preliminary examination procedure, it is necessary to specify the country or international organization that is scheduled to use the international preliminary examination results in the international preliminary examination request. These contracting States or international organizations are the selected countries, and the national bureaus of the selected countries are the selected bureaus.
In other words, the selection bureau is those countries that conduct substantive examination of patent rights in the countries designated by the applicant. Take China as an example. China's patent law stipulates that an application for a patent for invention shall be examined in substance, which is applicable to the second chapter of the Patent Cooperation Treaty mentioned above. For international applications designated by PCT in China, China National Intellectual Property Administration is both the designated office and the selected office. You got it?
Clearly understand the concepts of designated bureau and selected bureau, and then understand the provisions of PCT patent modification after entering the national phase.
After entering the national stage, it can be amended according to Article 28 and Article 4 1 of the PCT Treaty:
Article 28. Submit amendments to claims, specifications and drawings to the designated bureau.
(1) The applicant shall have the opportunity to propose amendments to the claims, specifications and drawings to the designated bureaus within the prescribed time limit. Except with the explicit consent of the applicant, no designated bureau may grant or refuse to grant the patent right before the expiration of this period.
(2) The modification shall not go beyond the scope of the invention disclosed when the international application is filed, unless the domestic law of the designated country allows the modification to go beyond this scope.
(3) In all aspects not specified in this Treaty and the detailed rules, the amendment shall conform to the domestic law of the designated country.
(4) If the designated office requires a translation of the international application, it shall use the language of the translation to make changes.
Article 4 1 is consistent with article 28 in terms of provisions, but the object has changed from "designated bureau" to "selected bureau", so I won't repeat it here.
After entering the national phase, the applicant needs to go through the formalities of the national phase within the prescribed time limit. Take China as an example, you need to go through the entry formalities within 30 months from the priority date (the international application date if there is no priority). It should also be noted that many countries have language requirements for application documents entering the national phase. Take China as an example. If the international application is not in Chinese, a Chinese translation is required.