The Patent Co-operation Treaty

In one line

The Patent Co-operation Treaty does not grant a world patent: it buys an inventor thirty months and one filing before deciding which countries are worth the cost.

In exam wording: the Patent Co-operation Treaty of 1970, administered by the World Intellectual Property Organization, provides a unified procedure for filing patent applications, comprising an international application, an international search, optional international preliminary examination, and entry into the national phase in designated States.

What problem it solves

Patents are territorial and expensive. An inventor who wants protection in twenty countries must file twenty applications, in the right languages, through local agents, within the twelve month priority period of Paris Article 4.

That timetable is the difficulty. Twelve months after the first filing is far too early to know whether an invention is commercially worth twenty national filings, and by then the money must be spent.

The Treaty postpones the decision. A single international application, filed once, in one language, at one office, preserves the applicant's rights in every designated State and defers the cost of national filings for thirty months from the priority date.

The procedure

Filing. An international application is filed with a receiving Office, usually the applicant's national office, or with the International Bureau of WIPO. It has the effect of a regular national filing in each designated State from the international filing date.

International search. An International Searching Authority, one of a number of major patent offices, conducts a search and issues an international search report listing the prior art, together with a written opinion on novelty, inventive step and industrial applicability. That opinion is not binding.

International publication occurs promptly after eighteen months from the priority date.

International preliminary examination, under Chapter II, is optional. On demand, an International Preliminary Examining Authority issues an international preliminary report on patentability, again non-binding.

National phase entry, ordinarily thirty months from the priority date. The applicant pays national fees, files translations, and appoints agents in the States it has chosen. Every substantive decision is taken nationally, applying national law.

What it does not do

It does not grant a patent. There is no PCT patent, and the phrase international patent is a misnomer.

It does not harmonise substantive law. Patentability is decided by each designated office under its own law, so an application may be granted in one State and refused in another on the same search report. India's section 3(d) is decided in India and nowhere else.

And it does not remove the cost, it defers it, which is the point.

Its relationship with TRIPS

The PCT is not a TRIPS obligation. TRIPS requires patents to be available and sets minimum standards for them; it does not require membership of any filing treaty.