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PCT National Phase in India - Withdrawal of Priority

The "priority date" of a patent application is the date on which prior art have an effect on its patentability. Generally priority date is the date on which the patent application was filed with the patent office. In certain cases a patent application will enjoy a priority date prior to its date of filing. For instance, a continuation or divisional application will have the filing date of the application of which it is a continuation or divisional. Another instance is the application which claims priority under the Paris Convention from a corresponding application filed less than one year earlier in another convention country; such an application has a priority date the same as that of the earlier application. Another example is the application which claims priority from a provisional application. An application may enjoy a priority date by virtue of being a national-phase application arising out of a PCT international application.


According to Rule 90bis.3 of PCT, the applicant can withdraw a priority claim at any time prior to the expiration of 30 months from the priority date. PCT Rule 90bis.3 is reproduced below.


Withdrawal of Priority Claims


(a) The applicant may withdraw a priority claim, made in the international application under Article 8(1), at any time prior to the expiration of 30 months from the priority date.


(b) Where the international application contains more than one priority claim, the applicant may exercise the right provided for in paragraph (a) in respect of one or more or all of the priority claims.


(c) Withdrawal shall be effective on receipt of a notice addressed by the applicant, at his option, to the International Bureau, to the receiving Office or, where Article 39(1) applies, to the International Preliminary Examining Authority.


(d) Where the withdrawal of a priority claim causes a change in the priority date, any time limit which is computed from the original priority date and which has not already expired shall, subject to paragraph (e), be computed from the priority date resulting from that change.


(e) In the case of the time limit referred to in Article 21(2)(a), the International Bureau may nevertheless proceed with the international publication on the basis of the said time limit as computed from the original priority date if the notice of withdrawal sent by the applicant or transmitted by the receiving Office or the International Preliminary Examining Authority reaches the International Bureau after the completion of the technical preparations for international publication


As per Rule 90bis.3 of PCT, the applicant can withdraw a priority claim at any time prior to the expiration of 30 months from the priority date.In other words, if a notice of withdrawal of a priority claim is received by the International Bureau or the receiving Office after the expiration of 30 months from the priority date, it has no effect under PCT Rule 90bis.3, neither in the international phase nor in the national phase. The fact that the applicable time limit for national phase entry is 31 months from the priority date before certain Offices like India, instead of 30 months, does not make any difference since the Rule expressly refers to "30 months," and not to the time limit under PCT Article 39(1).


Dr.Joseph Mani, Senior Partner of http://www.pmgip.com


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