3.2. Remedies under the PCT applied by the EPO as designated Office
The Legal Board held in J 13/16 that if, in the international phase, a receiving Office had restored a right of priority under the "unintentional" criterion of R. 26bis.3(a)(ii) PCT, the restoration was not effective in proceedings before the EPO acting as designated Office, since the EPO applies the "due care" criterion (R. 49ter.1(b) PCT). In such cases, within the period specified in R. 49ter.2(b)(i) PCT, the applicant must file a (new) request for restoration of a right of priority under R. 49ter.2 PCT with the EPO acting as designated Office. For the purposes of R. 49ter.2 PCT, the request filed with the receiving Office under R. 26bis.3(b) PCT could not be taken into account in the proceedings before the EPO acting as designated Office. See also J 10/17.
A request for restoration of rights as specified in R. 49ter.2 PCT is deemed not to have been filed if the applicable fee has not been paid within the relevant time limit (J 8/18, J 1/19).
- J 14/21
Catchword:
The PCT Assembly may be considered the legislator for the PCT Regulations. See reasons 16. “Understandings” of the PCT Assembly expressed in relation to a newly amended rule together with the adoption of this rule are an expression of the legislator's intention. See reasons 17 and 18. The delegates of the PCT Contracting States in the PCT Assembly agreed, in the "understandings" related to R. 49ter.2(b)(i) PCT, on how this rule should be applied. As an act of authentic interpretation by the legislator this agreement may be taken into account when assessing the context for the purpose of interpreting the new provision. See reasons 19. In the case in hand, when applying R. 49ter.2(b)(i) PCT in the light of the understandings of the PCT Assembly, the request and the payment for restoration of the right of priority were made in time. See reasons 23.