Filing Deadlines

PCT has no leniency with respect to dates. The PCT filing deadline is one year from the earliest claimed priority date, and that means one year "to the day". If the one year anniversary falls on weekend or holiday, the deadline is the previous business day. If the applicant files by fax through the International Bureau in Geneva, the last page of the application must be received on the fax machine by midnight on the due date. There is a bit of reprieve for U.S. filers using the U.S. receiving office, but only because the application is considered to have been place on file the day it is mailed (using the Express Mail filing procedure).

There is no requirement that the earliest claimed priority date is actually the date of the earliest filing anywhere. It is perfectly acceptable, for example, to file a provisional U.S. application in January 2003, a utility in December 2003, and then file the PCT application in August 2004, claiming priority only to the December 2003 utility. Such an application would be prohibited in Taiwan, for example, because Taiwan has a "first application" rule.

National phase filing deadlines is usually 30 month from earliest claimed priority date. But there are numerous wrinkles, and one should periodically check the WIPO website for the current deadlines. There are a few countries that still have 20 or 21 month deadlines, unless (a) the applicant pays the Chapter II fee by the 19th month, or (b) the countries are included in a regional filing. Those countries are Switzerland, Finland, Luxembourg, Sweden, Tanzania, Uganda, and Zambia. In all other countries the national phase deadline is generally 30 or 31 months, regardless of whether the applicant pays the Chapter II fee. The 31 month countries include European Patent Office (EPO), Australia, African Regional Industrial Property Organization (ARIPO), and Eurasian Patent Office (includes former USSR states). A few countries have even longer deadlines; Canada has a 42 month deadline, and South Africa and Bosnia/Herzegovina have 34 month deadlines. But these are such a rarity that practitioners commonly shorthand their speech to refer to "the 30/31 month filing deadline" or just "the 30 month deadline". A free PCT filing deadlines calculator is available on line.