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Guide for applicants, Part 2: PCT procedure before the EPO (Euro-PCT Guide)

 
 
Restoration of priority under Rule 49ter PCT
636
If the international application was filed more than 12 months from the filing date of the earlier application whose priority is claimed, the applicant may file a request for restoration of priority with the EPO as receiving Office and as designated/elected Office. For information on the procedure before the EPO as receiving Office see point 131.
637
The EPO in its function both as receiving Office and as designated/ elected Office will grant such a request only if the failure to claim the right of priority within the priority period occurred in spite of due care required by the circumstances having been taken. The requirement of due care is applied by the EPO in accordance with its standing practice under Article 122 EPC. The second criterion referred to in the PCT, whether the failure was unintentional, does not play a role in the procedures before the EPO (see point 641).
638
As set out hereafter (see point 640), if the applicant has already filed a request for restoration of priority with the receiving Office, a (new) request need not always be filed upon entry into the European phase.
639
The EPO will grant a request for restoration of priority right only if the following requirements are met: 
the filing date is within two months from the date on which the priority period expired; 
the failure to claim the right of priority within the priority period occurred in spite of due care required by the circumstances having been taken;
a request for restoration of priority is filed within one month from the date on which the 31-month time limit for entry into the European phase expired; 
the fee for restoration of priority levied by the EPO is duly paid within the same time limit; 
the request for restoration of priority is accompanied by a statement of reasons for the failure and is preferably accompanied by any declaration or other evidence in support of the statement of reasons. 
640
If the priority right was restored by the receiving Office under the "due care criterion", no new request need be filed with the EPO as designated/elected Office, since the EPO will, in principle, recognise the decision of the receiving Office. If, however, the EPO has reasonable doubt that the requirements for grant were not met, it will notify the applicant accordingly. In this communication the reasons for such doubt will be indicated and a time limit will be set within which the applicant may submit comments.
641
If the priority right was restored by the receiving Office under the "unintentional criterion", a new request needs to be filed with the EPO as designated/elected Office, since the EPO is not bound by the decision of any receiving Office under the “unintentional criterion”.
642
If the applicant wants the priority claim to be valid in the procedure before the EPO as designated/elected Office, a request for restoration must always be filed if, in the procedure before the receiving Office: 
no request for restoration of priority right was filed; 
the request for restoration of priority right filed with the receiving Office was rejected;  
a request for restoration of priority right filed with the receiving Office was granted only under the “unintentional criterion".