2.16 How can an applicant request restoration of the priority right? 

2.16.001If 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 5.13.019 ff).

2.16.002If 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. Rules 82 PCT and Rule 82quater PCT, which concern delays due to irregularities in the mail, delays due to force majeure or unavailability of any of the permitted electronic means of communication and the extension of time limits (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.

2.16.003The 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 (this statement should describe in detail the facts and circumstances that led to the late filing, as well as any remedial or alternative steps taken in an attempt to file the international application in time); 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. 

2.16.005A 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.

2.16.006If 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 5.13.019 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.