5. Restoration of priority and review of the grant of a request for restoration of the priority right

If an international application was filed outside the 12-month priority period, a request for restoration of the right of priority may be filed both in the international phase before the receiving Office (Rule 26bis.3 PCT) and on entry into the European phase before the EPO as designated or elected Office (Rule 49ter.2(b)(i) PCT).

In accordance with its practice under Art. 122, the EPO applies only the "due care" criterion (Rule 49ter.2(a)(i) PCT, OJ EPO 2007, 692). Consequently, a request for restoration of a priority right which was granted by a receiving Office (only) under the "unintentional" criterion has no effect before the EPO as designated/elected Office (Rule 49ter.1(b) PCT). In such cases, the request must be refiled with the EPO as designated/elected Office.

If, on the other hand, 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 normally recognise the decision of the receiving Office (A‑XV, 1.1). If, however, the EPO has reasonable doubt that the requirements for granting restoration were met, it will notify the applicant accordingly. In its communication, it will state the reasons for its doubts and set a time limit within which the applicant may submit comments.

The EPO does not apply the discretionary provision in Rule 49ter.1(f) PCT. This means that it will not consider a request for restoration of priority under Rule 49ter.2 PCT to be duly filed if it rejected such a request under Rule 26bis.3 PCT when acting as receiving Office during the international phase processing.

Consequently, if the applicant wants the priority claim to be valid in the proceedings before the EPO as designated/elected Office, a request for restoration must always be filed if, in the proceedings before the receiving Office:

–no request for restoration of priority right was filed

–a request for restoration of priority right was rejected

–a request for restoration of priority right was granted under the "unintentional" criterion.

The EPO as designated/elected Office will grant a request for restoration of priority right under Rule 49ter PCT if the following requirements are met:

(i)the filing date is within two months of the date of expiry of the priority period (Rule 26bis.2(c)(iii) PCT)

(ii)the failure to claim the right of priority within the priority period occurred in spite of all due care required by the circumstances having been taken (Rule 49ter.2(a) PCT, Art. 122)

(iii)a request for restoration of priority is filed within one month of the date on which the 31-month time limit for entry into the European phase expired or of the effective date of a request for early processing (A‑XII, 7.1); where the application is deemed withdrawn under Rule 160(1) for failure to comply with a requirement under Rule 159(1), the request for restoration of priority may still be filed together with a request for further processing (filed in due time) in respect of the 31-month period or with a request for re-establishment of rights (filed in due time) in respect of the period for requesting further processing

(iv)the fee for restoration of priority is duly paid within the time limit mentioned under point (iii) (Rule 49ter.2(b)(iii) PCT and Rule 49ter.2(d) PCT, Rule 136(1), Art. 2(1), item 13, RFees); the further considerations in point (iii) also apply to this fee

(v)the request is accompanied by a statement of reasons for the failure to file the international application within the priority period, and preferably also by any declaration or other evidence in support of the statement of reasons (Rule 49ter.2(b) PCT and Rule 136(2)).