3.3 Remedy if the translation is not filed

Where the application is deemed to be withdrawn under Rule 160(1), Rule 112(2) applies mutatis mutandis. The loss of rights is deemed not to have occurred if, within two months of notification of the communication, the translation and a valid request for further processing, including the payment of the requisite fee, are filed (E‑VIII, 2).

If the time limit for requesting further processing has been missed, a request for re-establishment of rights in respect of the period under Rule 135(1) may be filed (E‑VIII, 3).

Furthermore, if the translation is not filed in due time, reinstatement of rights under Rule 49.6 PCT in respect of the 31-month period is available as an alternative remedy for further processing. Given the fact that the fee is higher and stricter requirements apply, this remedy has no advantages if requesting further processing under Rule 135(1) is still available.

However, the remedy provided for in Rule 49.6 PCT may be an important alternative to a request for re-establishment of rights under Art. 122 if the time limit under Rule 135(1) has expired, since the fee to be paid is the same and (all) due care is to be proven in both cases (Art. 2(1), item 13, RFees, Rule 49.6(d)(i) PCT, Rule 136). In choosing between the two legal bases for remedying the loss of rights, it should be borne in mind that a request for reinstatement under Rule 49.6 PCT in respect of the 31-month period may not have the same result as a request for re-establishment in respect of the time limit for requesting further processing under Rule 135(1): this is the case when it can be proven that the 31-month period was missed although all due care was taken, but due care cannot be proven in respect of the missed time limit for filing a request for further processing in respect of the missed 31-month period. Therefore, if both time limits are still running at the time the applicant becomes aware of the omission, they are advised to apply for re-establishment under both provisions, invoking the one expected to be more successful as the legal basis for their main request. The remedy in Rule 49.6 PCT is available only for non-compliance with the requirements mentioned in Art. 22(1) PCT and Art. 39(1) PCT, i.e. filing of the translation and payment of the national fee (Rule 159(1)(a) and (c)). Since the search fee, the designation fee and the examination fee to be paid for the request for examination to be valid do not form part of the national (filing) fee under Art. 22(1) PCT and Art. 39(1) PCT, applicants cannot request reinstatement of rights under Rule 49.6 PCT if the application is deemed withdrawn because one of those fees was not paid and/or examination was not requested in due time.