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1893.03(a) How To Identify That an Application Is a U.S. National Stage Application [R-2] - 1800 Patent Cooperation Treaty
1893.03(a) How To Identify That an Application Is a U.S. National Stage Application [R-2]
Applicant's initially deposited application must be clearly identified as a submission to enter the national stage under 35 U.S.C. 371. See 37 CFR 1.495(g)). Otherwise, >unless the submission is clearly identified as a submission pursuant to 35 U.S.C. 154(d)(4) for the purpose of obtaining provisional rights,< the application will be treated as an application filed under 35 U.S.C. 111(a). >See 37 CFR 1.417.<
That is, if applicant wishes the application to be filed under 35 U.S.C. 111(a), applicant's originally filed application papers need indicate simply that the papers are for a new U.S. patent application. If, however, applicant is *>submitting< papers for entry into the national stage of a PCT application, or to establish an effective date for provisional rights resulting from the filing of a PCT application under 35 U.S.C. 154(d), applicant must so state. ** Examination of the **>original< application papers occurs in either the Office of Initial Patent Examination or in the National Stage Processing Division of the Office of PCT Operations where it is determined whether applicant has asked that the papers be treated as a submission to enter the national stage under 35 U.S.C. 371. If the application is accepted for entry into the national stage, the National Stage Processing Division will ** mail Form PCT/DO/EO/903 indicating acceptance of the application as a national stage *>submission< under 35 U.S.C. 371 and will stamp the face of the file with an indication that the application is "filed under 35 U.S.C. 371." Accordingly, the * key indicators which reflect that an application is an application which entered the national stage from an international application after compliance with 35 U.S.C. 371 are:
(A) The file face indication of "filed under 35 U.S.C. 371";
(B) >PALM will indicate that the application is a national stage application (e.g., under "Continuity Data");
(C) < The Form PCT/DO/EO/903 indicating acceptance of the application as a national stage application which has met the requirements of 35 U.S.C. 371; and
*>(D) < Applicant's statement (or the equivalent) in the originally filed application papers that the application is a submission to enter the national stage under 35 U.S.C. 371. Applicants who use transmittal Form PCT/DO/EO/1390 will>, in the absence of conflicting instructions,< satisfy the requirement for such a statement since the form includes an indication that the application is a national stage *>submission< under 35 U.S.C. 371.
Initially, the examiner should inspect the face of the file wrapper >(if not an IFW)< and/or * PALM ** for an indication that it **>was submitted< under 35 U.S.C. 371 and should also check the application papers for the presence of Form PCT/DO/EO/903. If neither of these indications are present the application may, in the absence of evidence to the contrary (there is an indication in the originally filed application papers that processing as a national stage is desired), be treated as a filing under 35 U.S.C. 111(a). Thus, if both indications are present, the application should be treated as a *>submission< under 35 U.S.C. 371. If the >application is not an IFW and the< face of the file wrapper does not indicate **>"filed under 35 U.S.C. 371,"< but a properly completed Form PCT/DO/EO/903 is in the file, the examiner should complete the face of the file by adding "filed under 35 U.S.C. 371" in the upper left margin thereof. The examiner should initial and date this change. If the file wrapper does not include a properly completed Form PCT/DO/EO/903 but the face of the file indicates **>"filed under 35 U.S.C. 371,"< the application should be returned to the National Stage Processing Division of the Office of PCT Operations for certification that the application has been accepted for the national stage.
In accordance with the notice at 1077 O.G. 13 (14 April 1987), if the applicant files a U.S. national application and clearly identifies in the accompanying oath or declaration the specification to which it is directed by referring to a particular international application by PCT Application Number and International Filing Date and that he or she is executing the declaration as, and seeking a U.S. Patent as, the inventor of the invention described in the identified international application, then the application will be accepted as *>submitted< under 35 U.S.C. 371. Merely claiming priority of an international (PCT) application in an oath or declaration will not serve to indicate a *>submission< under 35 U.S.C. 371. Also, if there are any conflicting instructions as to whether the filing is under 35 U.S.C. 111(a) or 35 U.S.C. 371, the application will be accepted as filed under 35 U.S.C. 111(a). **>A conflicting instruction will be present, for example, where applicant includes in the initial submission under 35 U.S.C. 371, a "Utility Patent Application Transmittal" (Form PTO/SB/05) or includes a benefit claim under 35 U.S.C. 120 to the international application. Applications that have been processed under 35 U.S.C. 371 and later found by the examiner to contain conflicting instructions should be forwarded to the Office of PCT Legal Administration for resolution.<
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