5.13 Priority claim
5.13.6.Restoration of priority under Rule 49ter PCT
5.13.019If the international application was filed more than 12 months from the filing date of the previous application whose priority is claimed, the applicant may file a request for restoration of priority with the EPO as receiving Office and as designated/elected Office. For information on the procedure before the EPO as receiving Office see point 2.16.001.
5.13.020The EPO in its function both as receiving Office and as designated/ elected Office will grant such a request only if the failure to claim the right of priority within the priority period occurred in spite of due care required by the circumstances having been taken. The requirement of due care is applied by the EPO in accordance with its standing practice under Article 122 EPC. The second criterion referred to in the PCT, whether the failure was unintentional, does not play a role in the procedures before the EPO. Therefore, a request for restoration of the priority right that was granted by the receiving Office under the "unintentional" criterion does not have any effect before the EPO as designated/elected Office (see point 5.13.023).
5.13.021As set out hereafter (see points 5.13.022 ff), if the applicant has already filed a request for restoration of priority with the receiving Office, a (new) request need not always be filed upon entry into the European phase.
5.13.022If the priority right was restored by the receiving Office under the "due care" criterion, no new request need be filed with the EPO as designated/elected Office, since the EPO will, as a rule, recognise the decision of the receiving Office. If, however, the EPO has reasonable doubt that the requirements for grant were met, it will notify the applicant accordingly. In this communication the reasons for such doubt will be indicated and a time limit will be set within which the applicant may submit comments.
5.13.023If the priority right was restored by the receiving Office under the "unintentional" criterion, a new request needs to be filed with the EPO as designated/elected Office, since the EPO is not bound by the decision of any receiving Office under the "unintentional" criterion (see points 5.13.020 and 5.13.025).
–the filing date of the international application is within two months of the date on which the priority period expired;
–the failure to claim the right of priority within the priority period occurred in spite of all due care required by the circumstances having been taken;
–the request for restoration of priority is filed within one month of the date on which the 31-month time limit for entry into the European phase expired or of the effective date of early entry into the European phase; where the international application is deemed to be withdrawn under Rule 160(1) EPC for failure to comply with a requirement under Rule 159(1) EPC, the request may still be filed together with an on-time request for further processing in respect of the 31-month time limit under Rule 159(1) EPC or, failing this, with an on-time request for re-establishment of rights in respect of the period for requesting further processing;
–the fee for restoration of priority levied by the EPO is duly paid, the time limit for doing so being the same as for the request for restoration of priority;
–the request for restoration of priority is accompanied by a statement of reasons for the failure to file the international application within the priority period and preferably by any declaration or other evidence in support of the statement of reasons.
5.13.025If the applicant wants the priority claim to be valid in the procedure before the EPO as designated/elected Office, a request for restoration must always be filed if, in the procedure before the receiving Office:
–no request for restoration of the priority right was filed;
–the request for restoration of the priority right filed with the receiving Office was rejected;
–a request for restoration of the priority right filed with the receiving Office was granted only under the "unintentional" criterion.