US National Phase Entry from India

The United States of America has always been a global center for the world’s best corporate and industries. Emerging startups and industries are constantly looking to enter the US for their expansion. Hence, it is important to discuss the issues related to the National Phase Entry through Patent Cooperation Treaty.

While being in India, one needs to file the PCT application here in India. After applying, the process of PCT starts including International Search and International Publication. After the conclusion of the PCT process, the applicant will now move on to the designated country where they wish to register their patent.

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Commencing the National Phase

The National Stage application is enshrined under 35 USC 371. The international application entering US National Phase will be accorded an eight-digit number which the applicant can use to track the patent application and also the process is also expedited. 

35 USC 371 makes the whole process clear. As specified in the UPSTO official website, it states:

Receipt from the International Bureau of copies of international applications with any amendments to the claims, international search reports, and international preliminary examination reports including any annexes thereto may be required in the case of international applications designating or electing the United States.

(b) Subject to subsection (f) of this section, the national stage shall commence with the expiration of the applicable time limit under article 22(1) or (2), or under Article 39(1)(a) of the treaty.

(c) The applicant shall file in the Patent and Trademark Office —

  • the national fee provided in section 41(a);
  • a copy of the international application, unless not required under subsection (a) of this section or already communicated by the International Bureau, and a translation into the English language of the international application, if it was filed in another language;
  • amendments, if any, to the claims in the international application, made under article 19 of the treaty, unless such amendments have been communicated to the Patent and Trademark Office by the International Bureau, and a translation into the English language if such amendments were made in another language;
  • an oath or declaration of the inventor (or other person authorized under chapter 11) complying with the requirements of section 115 and with regulations prescribed for oaths or declarations of applicants;
  • a translation into the English language of any annexes to the international preliminary examination report, if such annexes were made in another language.

(d) The requirement concerning the national fee referred to in subsection (c)(1), the translation referred to in subsection (c)(2), and the oath or declaration referred to in subsection (c)(4) of this section shall be complied with by the date of the commencement of the national stage or by such later time as may be fixed by the Director. The copy of the international application referred to in subsection (c)(2) shall be submitted by the date of the commencement of the national stage. Failure to comply with these requirements shall be regarded as abandonment of the application by the parties thereof unless it is shown to the satisfaction of the Director that such failure to comply was unavoidable. The payment of a surcharge may be required as a condition of accepting the national fee referred to in subsection (c)(1) or the oath or declaration referred to in subsection (c)(4) of this section if these requirements are not met by the date of the commencement of the national stage. The requirements of subsection (c)(3) of this section shall be complied with by the date of the commencement of the national stage, and failure to do so shall be regarded as a cancellation of the amendments to the claims in the international application made under article 19 of the treaty. The requirement of subsection (c)(5) shall be complied with at such time as may be fixed by the Director and failure to do so shall be regarded as cancellation of the amendments made under article 34(2)(b) of the treaty.

(e) After an international application has entered the national stage, no patent may be granted or refused thereon before the expiration of the applicable time limit under article 28 or article 41 of the treaty, except with the express consent of the applicant. The applicant may present amendments to the specification, claims, and drawings of the application after the national stage has commenced.

(f) At the express request of the applicant, the national stage of processing may be commenced at any time at which the application is for such purpose and the applicable requirements of subsection (c) of this section have been complied with.

 

 

Author: Saransh Chaturvedi an associate at Global Patent Filing,  in case of any queries please contact/write back us at support@globalpatentfiling.com.

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