How to get permission for the late filing on the basis of Coronavius disruption?

How to get permission for the late filing on the basis of Coronavius disruption?

Merits of Restoration Request based on Coronavirus disruption:

  1. Simple procedures;
  2. No evidence required; and
  3. High chance of success.

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How to get permission from the Japan Patent Office for the late filing on the basis of Coronavius outbreak?

As reported previously, the Japan Patent Office (JPO) announced that they accept late filings regarding certain procedures affected by COVID-19.  Among the listed procedures, we hereby provide you with comments regarding the PCT national phase entry into Japan, in which the overseas clients would be most interested.

1) Normal Request for Restoration based on “Legitimate Reasons”:

As you may know, there is a rule in Japanese patent law about unintentional missing of deadlines.  It covers the deadline to file a PCT national phase entry into Japan.

However, in general, the reasons are very restricted and the chance of success in getting permission from the JPO for the late filing after the deadline already lapsed is extremely low.  The reasons must be explained in detail with evidence. 

2) Special Request for Restoration based on Coronavirus disruption:

Meanwhile, the JPO currently accepts the special restoration request on the basis of the coronavirus disruption.  In this case, the chance of success in getting permission from the JPO for the late filing is expected to be much higher than the normal request.  Further, it is NOT required to prove, with evidence, that the failure to file the national phase entry was due to the coronavirus disruption.  It is OK to briefly explain the situation, for example:

  • The offices of applicants or their representatives have been closed due to those who were infected with the COVID-19;
  • Since local governments in regions where applicants or their representatives reside issued an order of or request for restrictions on movement due to the COVID-19, access to the office is severely restricted.

Meanwhile, the request for restoration must be field within a predetermined additional deadline.  In this respect, the JPO clearly states the additional deadline for submitting a Japanese translation of a PCT application as being 2 months.  However, they actually do not state the additional deadline for the PCT national phase entry.  In this respect, we called the JPO and discussed this matter, and confirmed that the additional deadline is also 2 months for the PCT national phase entry.  That means, it is possible to late file a PCT national phase entry within 2 months after the original deadline.  Meanwhile, as you know, in general, a Japanese translation of a PCT application must be filed within 2 months from the date on which a Petition for Entry is filed before the JPO.

Accordingly, if you wish to get permission for the late filing of your PCT application, we believe it advisable to file the following documents within 2 months from the original deadline to be on the safe side:

  1. Petition for Entry:
  2. Japanese translation of the PCT application; and
  3. Restoration Request.

3) Summary:

The important points regarding the special restoration request on the basis of coronavirus disruption compared to the normal request are the following:

  1. Procedures are simple;
  2. It is not required to submit documentary evidence; and
  3. Chance of success is expected to be high.

We believe the above comments will be clear to you.  Should you have any further questions, please do not hesitate to contact us at info@allegropat.com

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