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If an international application is filed after expiry of the priority period a request for restoration of priority right under Rule 26bis.3 PCT may be filed with the EPO as receiving Office. A request for restoration of priority may also be filed with the EPO upon entry into the European phase, but its effect will then per se be limited to the grant procedures before the EPO (see points 624 ff).
WIPO PCT Guide 5.063-5.069
OJ 2007, 692
PCT Newsletter
4/2007, 1-5
If the last day of the priority year falls on a non-working day or an official holiday of the EPO, the priority year expires on the next subsequent working day. Rule 82 PCT concerning delay in receipt of an international application due to irregularities in the mail is not applicable to the 12-month time limit for claiming priority, since this time limit is not fixed in the PCT.
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the international filing date is within two months from the date on which the priority period expired;
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the request for restoration is filed within the time limit of two months from the date on which the priority period expired;
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the fee for restoration of the right of priority is paid within the same time limit, which is not extended if the EPO acts as receiving Office;
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the request for restoration is supplemented by a statement explaining the reasons for failure to file the application within the priority period together with, where available, any evidence; and
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the failure to file the international application within the priority period occurred in spite of due care required by the circumstances having been taken by the applicant.
A decision by the receiving Office on a request for restoration of priority is not required for the international search if the application was filed within two months from the date on which the priority period expired, because in that case the priority claim may not be considered void during the international phase (see point 233).
If the applicant has not requested restoration of priority in the procedure before the EPO as receiving Office or if the request for restoration has been rejected by the latter, the applicant may file a new request in the national phase, i.e. in the procedures before the EPO (see points 624 ff) and any other designated Office that has not made a reservation as to the applicability of Rules 49ter.1 and .2 PCT.
If the EPO as receiving Office has granted a request for restoration, that decision is valid and will not be reviewed in the procedure before the EPO as designated Office (see points 628-629). If no reservation applies, that positive decision will as a rule also be accepted by other designated Offices.
R. 49ter.1 and 2 PCT
For information as to the Offices that have made a reservation, reference is made to the information in the WIPO PCT Guide (see points 11 ff).