What criteria must be met for the restoration of the right of priority in a PCT application?
This page is an FAQ based on guidance from the Manual of Patent Examining Procedure. It is provided as guidance, with links to the ground truth sources. This is information only: it is not legal advice.
For the restoration of the right of priority in a PCT application, two main criteria must be met, as outlined in MPEP 1828.01:
- Due Care Criterion: The failure to file the international application within the priority period occurred in spite of due care required by the circumstances having been taken.
- Unintentional Criterion: The failure to file the international application within the priority period was unintentional.
The MPEP states:
“The receiving Office shall, on the request of the applicant, restore the right of priority if it finds that a criterion for restoration applied by it is satisfied, namely, that the failure to file the international application within the priority period: (i) occurred in spite of due care required by the circumstances having been taken; or (ii) was unintentional.”
It’s important to note that different receiving Offices may apply different criteria, so applicants should be aware of which criterion applies to their specific case.