The provisions for restoration of priority right (see A‑III, 6.6) also exist under the PCT (Rules 26bis.3 PCT and Rule 49ter PCT). Under the PCT, restoration of the right of priority can be made either in the international phase before the receiving Office (Rule 26bis.3 PCT) or upon entry into the European phase before the EPO as designated or elected Office (Rule 49ter.2(b)(i) PCT).
The EPO as both receiving Office and designated/elected Officeonly applies the "due care" criterion in accordance with its practice under Art. 122 (Rules 26bis.3(a)(i) PCT and Rule 49ter.2(a)(i) PCT; see also E‑VIII, 3.2 and the Notice from the EPO dated 7 November 2007, OJ EPO 2007, 692). As a consequence, any request for restoration of priority rights granted by a receiving Office under the "unintentional" criterion is not valid in the proceduredoes not have any effect before the EPO as designated/elected Office (Rule 49ter.1(b) PCT).
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 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.
Consequently, 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:
The EPO as designated/elected Office will grant a request for restoration of priority right only if the following requirements are met: