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Euro-PCT Applications

Jim Ruttler, Patent Attorney

Posted Thursday, April 21, 2016 by Jim Ruttler

A patent application filed in the United States with the USPTO can serve as the basis for a later European patent application. That is, a later European patent application can be treated as if were filed on the earlier U.S. filing date if certain steps are taken.

The first is to file at least a provisional patent application in the United States fully disclosing your invention and including at least one claim, prior to any disclosures, offers for sale, or publications of your invention. Upon filing, it is possible to wait up to one year to file a PCT application with the World Intellectual Property Organization.

This PCT application undergoes a search, and optional non-binding examination, but it does not issue into a patent anywhere. Instead, within 30 months from the first filed application (e.g., the provisional in this case), the PCT application can be used to enter national stage with the European Patent Office. The EPO will examine the national stage application and determine whether to grant a patent on the invention. Importantly, the EPO will treat the national stage application as if it were filed on the U.S. provisional filing date (in this example).

Hence, disclosures and offers for sale and other inventions that occurred after the filing date of the provisional (again in this example) would not impact the patentability determination of the national stage application in Europe, even those the national stage application was not filed for years after the provisional application.

This procedure can be effective to obtain a Unitary European Patent, which will be enforceable across most of the EU via the new unified court system.

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