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(C) if the filing of an international application is
to be taken into account in determining the patentabil- .
ity or validity of any application for patent or granted
patent, then special provisions apply. See MPEP
§ 1895.01, subsection (E) and MPEP § 1896.
A "patent" under 35 U.S.C. 102(e)(2) refers to a
patent granted on an application filed in the U.S.
However, a patent issuing from an international application
filed on or after November 29, 2000, which
entered the national stage under 35 U.S.C. 371 is not
considered to be filed in the U.S. for purposes of
35 U.S.C. 102(e)(2). Patents issuing in other countries
throughout the world are not prior art under 35 U.S.C.
102(e).
IDENTIFICATION OF THE NATIONAL STAGE
APPLICATION
Once the national stage application has been
accorded an application number (the two digit series
code followed by a six digit serial number), that number
as well as the international application number
should be used whenever papers or other communications
are directed to the USPTO regarding the national
stage application. The national stage application is
tracked through the Patent Application Locating and
Monitoring (PALM) system by the eight digit U.S.
application number. Therefore, processing is expedited
if the U.S. application number is indicated. The
international application number is helpful for identification
purposes and can bensed to cross-check a
possibly erroneous U.S. application nnmber.Of
course, the international filing date and the national
stage entry date under 35 U.S.C. 371sh()u1d also be
provided. See 37 CFR 1.5(a).
1893.01 Commencement and Entry
35 U'SiC. 371. National stage: Commencement.
(a) Receipt from the International Bureau of copies of international
applications withanyamendments 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 applicabletime
limit under article 22 (1) or (2), or under article 39 (I)(a) of the
treaty.
PATENT COOPERAnON TREATY
Offlce c-.
1893.01
(c) The applicant shall file in the Patent and Trademark
(1) the national fee provided in section 41(a) ofthis title;
(2) a copy ofthe international application, unless not
required undersubsection (a) ofthis,section or already communicated
by the International Bureau, and a translation into the
English language of the international application, ifit was filed in
another language;
(3) 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 Patentand Trademark
Office by the International Bureau, and a translation into the
English language, if such amendments were made in another language;
(4) an oath or declaration of the inventor (or other person
authorized under chapter 11 ofthis title) complying with the
requirements of section 115 ofthis title and with regulations prescribed
for oaths or declarations of applicants;
(5)·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.with respect to the national fee referred
to, in subsection (c)(l), 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 snbsection(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 ofthe application
by the parties thereof, unless itbe 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 acceptingthe
national fee.referredto in subsection (c)(l) or the oath or
declaration referredtoin subsection (c)(4) ofthis section ifthese
requirements are notmet by the date of the commencement of the
national stage. The requirements of subsection (c)(3) of this section
shall be compliedwith by the date of the commencement of
the national stage, and failure to do so shall be regarded as.acancellation
of the. amendments' to the claims in the international
application madeunder article 19 ofthe treaty. The requirement of
subsection (c)(5) shallbe 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): Aftetaninternational 'application has entered the
national stage;'no patent may be granted or refused thereon before
the expiration of-the applicabletime 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 ofthe 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 applicationis
in order for suchpurpose and the applicable requirements
of subsection (c) ofthis section have been complied with.
1800-133 August 2001