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The PCT was concluded in 1970, amended in 1979, and modified in 1984 and 2001. It is open to States party to the Paris Convention for the Protection of Industrial Property (1883). Instruments of ratification or accession must be deposited with the Director General of WIPO. The Treaty makes it possible to seek patent protection for an invention simultaneously in each of a large number of countries [PDF] by filing an "international" patent application. Such an application may be filed by anyone who is a national or resident of a Contracting State. It may generally be filed with the national patent office of the Contracting State of which the applicant is a national or resident or, at the applicant's option, with the International Bureau of WIPO in Geneva. If the applicant is a national or resident of a Contracting State which is party to the European Patent Convention, the Harare Protocol on Patents and Industrial Designs (Harare Protocol), the revised Bangui Agreement Relating to the Creation of an African Intellectual Property Organization or the Eurasian Patent Convention, the international application may also be filed with the European Patent Office (EPO), the African Regional Industrial Property Organization (ARIPO), the African Intellectual Property Organization (OAPI) or the Eurasian Patent Office (EAPO), respectively. The international application is then subjected to what is called an "international search." That search is carried out by one of the major patent offices appointed by the PCT Assembly as an International Searching Authority (ISA). The said search results in an "international search report," that is, a listing of the citations of such published documents that might affect the patentability of the invention claimed in the international application. At the same time, the ISA prepares a written opinion on patentability. The international search report and the written opinion are communicated by the ISA to the applicant who may decide to withdraw his application, in particular where the said report or opinion makes the granting of patents unlikely. If the international application is not withdrawn, it is, together with the international search report, published by the International Bureau. The written opinion is not published. The procedure under the PCT has great advantages for the applicant, the patent offices and the general public: (i) the applicant has up to 18 months more than he has in a procedure outside the PCT to reflect on the desirability of seeking protection in foreign countries, to appoint local patent agents in each foreign country, to prepare the necessary translations and to pay the national fees; he is assured that, if his international application is in the form prescribed by the PCT, it cannot be rejected on formal grounds by any designated Office during the national phase of the processing of the application; on the basis of the international search report or the written opinion, he can evaluate with reasonable probability the chances of his invention being patented; and the applicant has the possibility during the international preliminary examination to amend the international application to put it in order before processing by the designated Offices;

(ii) the search and examination work of patent offices can be considerably reduced or virtually eliminated thanks to the international search report, the written opinion and, where applicable, the international preliminary examination report that accompany the international application; (iii) since each international application is published together with an international search report, third parties are in a better position to formulate a well-founded opinion about the patentability of the claimed invention. The PCT created a Union. The Union has an Assembly. Every State party to the PCT is a member of the Assembly. Among the most important tasks of the Assembly are the amendment of the Regulations issued under the Treaty, the adoption of the biennial program and budget of the Union and the fixing of certain fees connected with the use of the PCT system. Details concerning the PCT can be most simply obtained by consulting the Protecting your Inventions Abroad: Frequently Asked Questions about the Patent Cooperation Treaty [PDF], the PCT Applicant's Guide and the PCT Newsletter, published by WIPO.

Patent Cooperation Treaty

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Patent Cooperation Treaty (PCT)

Procedural steps

Filing applications

International search International preliminary examination National and regional phase

Publications

PCT Gazette PCT Newsletter

Related topics

Computer programs and the PCT

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The Patent Cooperation Treaty (PCT) is an international patent law treaty, concluded in 1970. It provides a unified procedure for filing patent applications to protect inventions in each of its contracting states. A patent application filed under the PCT is called an international application, or PCT application. A single filing of an international application is made with a Receiving Office (RO) in one language. It then results in a search performed by an International Searching Authority (ISA), accompanied by a written opinion regarding the patentability of the invention, which is the subject of the application. It is optionally followed by a preliminary examination, performed by an International Preliminary Examining Authority (IPEA). [1] Finally, the relevant national or regional authorities administer matters related to the examination of application (if provided by national law) and issuance of patent. The PCT does not provide for the grant of an "international patent", as such multinational patent does not exist, and the grant of patent is a prerogative of each national or regional authority. [2] The contracting states,[3] the states which are parties to the PCT, constitute the International Patent Cooperation Union.[3]

History
The Washington Diplomatic Conference on the Patent Cooperation Treaty was held in Washington from May 25 to June 19, 1970. The Patent Cooperation Treaty was signed on the last day of the conference on June 19, 1970. The Treaty entered into force on January 24, 1978,

initially with 18 contracting states.[4] The first international applications were filed on June 1, 1978.[4] The Treaty was subsequently amended in 1979, and modified in 1984 and 2001.

[edit] Accession
Any contracting state to the Paris Convention for the Protection of Industrial Property can become a member of the PCT. A majority of the world's countries are signatories to the PCT, including all of the major industrialised countries (with a few exceptions, including Argentina and Taiwan). As of September 28, 2009, there were 142 contracting states to the PCT. Thailand became the 142nd contracting state on 24 September 2009. The PCT entered into force in Thailand on 24 December 2009.[5][6]

[edit] Procedure
The main advantages of the PCT procedure, also referred to as the international procedure, are the possibility to delay as much as possible the national or regional procedures, and the respective fees and translation costs, and the unified filing procedure. An international patent application (also called PCT application, as mentioned above) has two phases. The first phase is the international phase in which patent protection is pending under a single patent application filed with the patent office of a contracting state of the PCT. The second phase is the national and regional phase which follows the international phase in which rights are continued by filing necessary documents with the patent offices of separate contracting states of the PCT. [7] A PCT application, as such, is not an actual request that a patent be granted, and it is not converted into one unless and until it enters the "national phase". [8]
[edit] Filing

The first step of the procedure consists in filing an international (patent) application with a suitable patent office, called a Receiving Office (RO). This application is usually called an international application or simply a PCT application since it does not result in an international patent nor in a PCT patent (both of which do not exist). The international application needs to be filed in one language only, although translations may still be required for international search and international publication, depending on the language of filing and the International Searching Authority to be used. At least one applicant (either a physical or legal person) must be a national or resident of a contracting state to the PCT; otherwise, no international filing date is accorded.[9] In most member states, the applicant or at least one of the applicants of the application is required to be a national or resident of the state of the receiving office where the application is filed. Applicants from any contracting state may file an international patent application at the International Bureau in Geneva.[10] Upon filing of the international application, all contracting states are automatically designated.[11][12] Subject to reservations made by any contracting state,[citation needed] an international patent application fulfilling the requirements of the treaty and accorded an

international filing date has the effect of a regular national application in each designated state as of the international filing date, which date is considered to be the actual filing date in each designated State.[13] However, in some countries, the prior effect of an international application filed outside such countries may be different from the prior effect of a local national application.[14] For example, in the United States, an international patent application filed outside the United States has a different prior art effect than a direct US application.

International Searching Authorities (ISA) and International Preliminary Examining Authorities (IPEA) [15]

1. Austrian Patent Office (AT).

2. Australian Patent Office (AU).

3. National Institute of Industrial Property (BR).[16]

4. Canadian Intellectual Property Office (CA).

5. State Intellectual Property Office of the People s Republic of China (CN).

6. European Patent Office (EP).

7. Spanish Patent and Trademark Office (ES).

8. National Board of Patents and Registration of Finland

(FI).

9. Japan Patent Office (JP).

10. Korean Intellectual Property Office (KR).

11. Federal Service for Intellectual Property, Patents and Trademarks (Russian Federation) (RU).

12. Swedish Patent and Registration Office (SE).

13. United States Patent and Trademark Office (US).

14. Nordic Patent Institute (XN).

Note 1: All International Searching Authorities are also International Preliminary Examining Authorities.

Note 2: The Egyptian Patent Office and the Israeli Patent Office were appointed as ISA and IPEA on September 25, 2009. Their appointments will become effective when they [17] are ready to begin operations.

[edit] Search and written opinion

A search or international search is then made by an authorized International Searching Authority (ISA) to find the most relevant prior art documents regarding the claimed subject

matter. The search results in an International Search Report (ISR), together with a written opinion regarding patentability.[18] The ISR is normally provided by the ISA to the applicant 9 months after filing of the application in the event of a first filing and 16 months after the priority date in the event of a subsequent filing (i.e., claiming the priority of a first filing). The ISR is published together with the international application (or as soon as possible afterwards). The written opinion is initially confidential, but unless it is superseded by an International Preliminary Examination Report (see optional examination, below), it is made available in the form of an International Preliminary Report on Patentability (Chapter I of the Patent Cooperation Treaty, or IPRP Chapter I), within 30 months of the filing date or a priority date, if any.[19] If the ISR is not in English, it is translated into English for publication.[20] A designated Office may require a translation of the IPRP Chapter I into English.[21] The international search report can help the applicant to decide whether it would be worthwhile to seek national protection, and if so, in how many countries, as it costs fees and other expenses, including costs of translation, to enter the national phase in each country. Yet another advantage of filing an international application under the PCT is that many national patent authorities will rely on the international search report (although the PCT does not oblige them to do so) instead of starting from scratch to search the prior art themselves, and the applicant may be able to save in search fees. [22] In addition to the compulsory international search, one or more optional supplementary international searches may also be carried out by participating International Searching Authorities, [23] upon request by the applicant[24] and payment of corresponding fees[25]. The purpose is to reduce the likelihood of seeing new prior art being cited in the subsequent national phases.[26] A supplementary international search is said to allow applicants to obtain an additional search report "taking into account the growing linguistic diversity of the prior art being found".[26]
[edit] Publication

18 months after the filing date or the priority date, the international application is published by the International Bureau at the WIPO, based in Geneva, Switzerland, in one of the ten "languages of publication": Arabic, Chinese, English, French, German, Japanese, Korean, Portuguese, Russian, and Spanish. [27] There is an exception to this rule, however. If 18 months after the priority date, the international application designates only the United States, then the application is not automatically published.[28]
[edit] Optional examination

An international preliminary examination may optionally be requested ("demanded").[29][30] The international preliminary examination is conducted by an authorized International Preliminary Examination Authority (IPEA). This results in an International Preliminary Examination Report (IPER). Since 2004, the IPER bears the title "international preliminary report on patentability

(Chapter II of the Patent Cooperation Treaty)" (commonly abbreviated "IPRP Chapter II").[31] The filing of a demand for international preliminary examination, which must be done within a time limit,[32] is subject to the payment of a "handling fee" for the benefit of the International Bureau[33] and a "preliminary examination fee" for the benefit of the IPEA.[34] The cost of filing a demand varies depending on the IPEA used by the applicant.[30] If the written opinion established by the International Searching Authority (ISA) is positive, "there is little value to be obtained from filing a demand".[30] However, "[for] cases where the written opinion of the ISA contains negative findings, the savings in the applicants/agents time and, where applicable, agents fees, required by multiple responses to national offices may well justify the use of the Chapter II procedure."[35] There are many advantages, such as cost and effort savings ("as well as possibly shortened pendency/faster grants"[35]), in receiving a favorable IPRP Chapter II, i.e. a favorable report following an international preliminary examination.[35] For instance, national offices "with a smaller examining staff and those without examiners tend to rely more heavily on the results in the IPRP Chapter II".[35] When an examination is demanded, the contracting states for which the examination is demanded are called Elected Offices (under Chapter II), otherwise they are called Designated Offices (under Chapter I). The election of a contracting state correspondingly means electing it when demanding (requesting) the examination. An alternative to the filing of a demand for international preliminary examination is to file informal comments in response to the written opinion established by the ISA. These informal comments are not published. The informal comments should be submitted to the International Bureau (IB), and not to the ISA or the IPEA.[36] They are kept in the file of the international application and, in the case where no demand is filed, forwarded to the designated offices,[30][36] which are free to require a translation of the informal comments.[36]
[edit] Subject matter

The PCT does not make any specific provision concerning the types of invention which may be the subject of an international application. Rules 39 and 67 permit International Searching and Preliminary Examining Authorities not to carry out search and examination on certain types of subject matter, such as scientific and mathematical theories, methods of doing business and computer programs to the extent that the Authority is not equipped to carry out a search or international preliminary examination concerning such programs. However, while a lack of international search may make national processing more difficult, Article 27(5) PCT makes clear that this does not affect the issue of whether the invention is patentable under the laws of the designated States:
"Nothing in this Treaty and the Regulations is intended to be construed as prescribing anything that would limit the freedom of each contracting state to prescribe such substantive conditions of patentability as it desires. (...)"

[edit] National and regional phase

Finally, at 30 months[37] from the filing date of the international application or from the earliest priority date of the application if a priority is claimed, the international phase ends and the international application enters in national and regional phase. However, any national law may fix time limits which expire later than 30 months. For instance, it is possible to enter the European regional phase at 31 months from the earliest priority date. National and regional phases can also be started earlier on the express request of the applicant.[38] If the entry into national or regional phase is not performed within the prescribed time limit, the international application generally ceases to have the effect of a national or regional application.[39]

[edit] Statistics
The millionth international application (or PCT application) was filed at the end of 2004.[40] The first ever decline in the number of filed PCT applications in an over 30-year history occurred in 2009, with a 4.5 percent drop compared to 2008.[41]

[edit] See also

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Computer programs and the Patent Cooperation Treaty European Patent Organisation (EPO) Eurasian Patent Organization (EAPO) Intellectual Property Patent Law Treaty (PLT) PCT Gazette PCT Newsletter Substantive Patent Law Treaty (SPLT) World Intellectual Property Organization (WIPO)

From Wikipedia, the free encyclopedia Jump to: navigation, search The Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure, or Budapest Treaty, is an international treaty signed in Budapest, Hungary, on April 28, 1977. It entered into force on August 9, 1980, and was later amended on September 26, 1980. The treaty is administered by the World Intellectual Property Organization (WIPO). As of June 2010, 73 countries were party to the Budapest Treaty.[1] The Budapest Treaty will enter into force with respect to Luxembourg, the 73rd Contracting States, on 29 July 2010.[2] The accession to the Treaty is open to States party to the Paris Convention for the Protection of Industrial Property of 1883. The African Regional Industrial Property Organization (ARIPO), the Eurasian Patent Organization (EAPO) and the European Patent Organisation (EPO) have filed a declaration of acceptance under Article 9(1)(a) [3] of the Treaty.

Budapest Treaty

The treaty allows "deposits of microorganisms at an international depositary authority to be recognized for the purposes of patent procedure". [4] Usually, in order to meet the legal requirement of sufficiency of disclosure, patent applications and patents must disclose in their description the subject-matter of the invention in a manner sufficiently clear and complete to be carried out by the person skilled in the art (see also: reduction to practice). When an invention involves a microorganism, completely describing said invention in the description to enable third parties to carry it out is usually impossible. This is why, in the particular case of inventions involving microorganisms, a deposit of biological material must be made in a recognised institution. The Budapest Treaty ensures that an applicant, i.e. a person who applies for a patent, needs not to deposit the biological material in all countries where he/she wants to obtain a patent. The applicant needs only to deposit the biological material at one recognised institution, and this deposit will be recognised in all countries party to the Budapest Treaty.

International depositary authority

The deposits are made at an international depositary authority (IDA) in accordance with the rules of the Treaty on or before the filing date of the complete patent application. Article 7 of the Budapest treaty outlines the requirements for a facility to become an International Depositary Authority. As of March 1, 2008, there were 37 IDAs in approximately 20 countries worldwide.
[4]

[edit] Depositable subject matter

IDA's have accepted deposits for biological materials which do not fall within a literal interpretation of "microorganism". The Treaty does not define what is meant by microorganism. The range of materials able to be deposited under the Budapest Treaty includes:
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cells, for example, bacteria, fungi, eucaryotic cell lines, plant spores; genetic vectors (such as plasmids or bacteriophage vectors or viruses) containing a gene or DNA fragments; organisms used for expression of a gene (making the protein from the DNA).

There are many types of expression systems: bacterial; yeast; viral; plant or animal cell cultures;
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yeast, algae, protozoa, eucaryotic cells, cell lines, hybridomas, viruses, plant tissue cells, spores, and hosts containing materials such as vectors, cell organelles, plasmids, DNA, RNA, genes and chromosomes; purified nucleic acids; or deposits of materials not readily classifiable as microorganisms, such as naked DNA, RNA, or plasmids

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