International Patent Protection – the Power of the PCT Application

Home | China Law Blog | International Patent Protection – the Power of the PCT Application In an ever-growing and increasingly competitive climate, many of our clients are turning their attention to protecting their intellectual property on a global scale. Enter: the Patent Co-Operation Treaty Application or, PCT Application. What is a PCT Application? It’s essentially a “placeholder” application that establishes a filing date for your invention, which can then be “nationalized” in any of the 156 countries that are members of the PCT. The PCT covers most of the major industrial countries of the world, but not Argentina, Bangladesh, Pakistan, Paraguay, Taiwan, Uruguay, or Venezuela. China is a member of the PCT. Taiwan is not. A PCT application can be the first patent application you ever file, or it can claim priority to an earlier-filed application. What is the Process of Filing a PCT Application? The process generally looks like this: You file the PCT Application. You will also designate an International Search Authority (ISA), which is the patent office that will perform an initial review of the claims in your PCT application. Your ISA searches for prior art. Your ISA will identify what it deems to be relevant prior art in an International Search Report (ISR). Your ISA will then issue a non-binding Written Opinion (WO) that contains its view on the patentability of your claims. (If you designate the U.S. Patent Office, it aims to issue the ISR and WO within 9 months of the PCT filing date if the PCT application is the first application, or 16 months from the priority date if the PCT application is a subsequent filing). If the WO is favorable, you can enter prosecution early in some jurisdictions. If the WO is not favorable, you can amend the claims at various points during the PCT process. Your PCT application publishes approximately 18 months after the priority date. Generally, within 30 months (longer in some jurisdictions) from your priority date, you will “nationalize” the application in the countries you desire. Note that there are sometimes substantial costs for translation preparation and application filings in each of your selected jurisdictions. Each of your nationalized patent applications will then follow their own country-specific procedures for prosecution to grant. Your PCT Application itself will expire, and it alone cannot issue as an “international patent” (those don’t exist). There are various benefits to filing a PCT Application instead of starting off with separate patent applications in each country, including deferral of costs and time constraints and the prior art that necessarily gets created when a PCT Application gets published. This can be an effective and efficient way for companies to ensure that their provisional patent applications in the United States are primed for globalization. Check Out Our China Law Services Share Twitter Facebook LinkedIn E-mail Comment Fred Rocafort Fred leads Harris Sliwoski’s intellectual property practice and is the coordinator of the firm’s international team. Much of Fred’s practice consists of helping cannabis businesses protect their brands. He also works with entrepreneurs and companies entering the Web3 space, a new frontier for IP law. Prior to joining Harris Sliwoski, Fred worked overseas for more than a decade, in both government and private sector roles. Fred is a regular contributor to the award-winning China Law Blog and Canna Law Blog. Fred began his career overseas as a U.S. consular officer in Guangzhou, China, where he advocated for fairer treatment of American companies and citizens in China and for stronger intellectual property rights enforcement. After entering the private sector, Fred worked at a Shanghai law firm as a foreign legal advisor and later joined one of the oldest American law firms in China, helping foreign companies navigate the Chinese legal environment. He also led the legal team at a Hong Kong-based brand protection consultancy, spending most of his time out in the field, protecting clients against counterfeiters and fraudsters in Greater China, Southeast Asia and Latin America. In addition to his IP work, as a native Spanish speaker, Fred works closely with different Harris Sliwoski teams on Latin America and Spain matters. Fred also provides advice to cannabis industry participants and other businesses on import and export transactions. Fred is an ardent supporter of FC Barcelona—and would be even in the absence of Catalan forebears who immigrated to Puerto Rico in the mid-1800s. 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