2.15.001If an international application is filed after expiry of the priority period, a request for restoration of the right of priority under Rule 26bis.3 PCT may be filed with the EPO as receiving Office. A request for restoration of the right of priority may also be filed with the EPO as designated or elected Office upon entry into the European phase, but its effect will then be limited to the grant procedures before the EPO (see points 5.13.017 ff).
Art. 8 PCT
R. 2.4 PCT, R. 26bis.2(a)(i) PCT, R. 26bis.2(c)(iii) PCT, R. 26bis.3 PCT,
Art. 2(1)13 RFees
OJ 2007, 692
WIPO PCT Guide 5.062-5.069
2.15.002If the last day of the priority year falls on a non-working day or an official holiday of the EPO, the priority year expires on the next subsequent working day. Rule 82 PCT concerning delays due to irregularities in the mail and Rule 82quater PCT concerning delays due to force majeure or unavailability of any of the permitted electronic means of communication (see point 1.11.001 ff) are not applicable to the 12-month priority period because it is not fixed in the PCT Rules but in the Paris Convention.
R. 80.5 PCT, R. 82, 82quater PCT
R. 134(1) EPC
PCT Newsletter, 3/2020, 6
PCT Newsletter, 5/2021, 12
2.15.003The EPO as receiving Office may only grant a request for restoration of the right of priority if the following requirements are met:
–the international filing date is within two months from the date on which the priority period expired;
–the international application contains a claim to the priority of an earlier application or, if not, such a claim is added within time limit for filing the request for restoration;
–the request for restoration is filed within the time limit of two months from the date on which the priority period expired;
–the fee for restoration of the right of priority is paid within the same time limit, which is not extendable before the EPO as receiving Office;
–the request for restoration is supplemented by a statement explaining the reasons for failure to file the application within the priority period together with, where available, any evidence; and
–the failure to file the international application within the priority period occurred in spite of due care required by the circumstances having been taken by the applicant.
2.15.004If the EPO as receiving Office intends to refuse a request for restoration of the right of priority, it will issue a notification of the intended refusal (Form PCT/RO/158) and invite the applicant to submit further evidence and/or make observations on the matter within the time limit of two months from the date of the notification. Only once this time limit has expired will a final decision be taken and issued (Form PCT/RO/159).
2.15.005A decision by the receiving Office on a request for restoration of the right of priority is not required for the international search if the application was filed within two months from the date on which the priority period expired because in that case the priority claim may not be considered void during the international phase (see point 3.2.024). Where the priority claim in question is the only or the earliest one in the international application, it continues to serve as the basis for the calculation of all time limits during the international phase, including the time limits for entry into the national phases, i.e. also into the European phase.
R. 26bis.2(c)(iii) PCT
WIPO PCT Guide 5.062
2.15.006If the applicant has not requested restoration of the right of priority in the procedure before the EPO as receiving Office or if the request for restoration has been rejected by the latter, the applicant may file a new request in the national phase, i.e. in the procedures before the EPO (see points 5.13.017 ff) and any other designated Office that has not made a reservation as to the applicability of Rules 49ter.1 PCT and Rules 49ter.2 PCT.
2.15.007If the EPO as receiving Office has granted a request for restoration, that decision is valid and will not be reviewed in the procedure before the EPO as designated Office (see points 5.13.020-point 5.13.021). If no reservation applies, that positive decision will, as a rule, also be accepted by other designated Offices.
2.15.008Information on the Offices that have made a reservation can be found on the WIPO website.29