WIPO Journal - World Intellectual Property Organization

Filing date requirements under the Patent
Cooperation Treaty: Alignment with the Patent
Law Treaty?
Cees Mulder
European Patent Attorney and Lecturer in Intellectual Property Law at the Faculty of
Law of Maastricht University
Applications; Filing date; Patents
The Patent Law Treaty (PLT) aims at harmonising and streamlining formal procedures relating to national
and regional patent applications and maintenance of patents. However, the PLT does not establish a
uniform procedure for all parties to the PLT by leaving many requirements optional, allowing divergence
in implementation between parties. Both the PLT and the Patent Cooperation Treaty (PCT) are international
treaties on patent law. As the PCT cannot become a “Contracting Party” to the PLT, there is, ex lege, no
reason for the PCT to comply with the requirements set by the PLT. In view of the close relationship
between the PLT and the PCT, attempts have been undertaken to align the PCT with the PLT but this was
hampered because amendment of the PCT Articles was regarded necessary. In this article the degree of
alignment of the PCT with the PLT is investigated in relation to the filing date requirements under the
PCT.
Introduction
In June 2000, the Diplomatic Conference for the Adoption of the Patent Law Treaty (PLT), convened by
the World Intellectual Property Organization (WIPO) and encompassing 140 states, adopted the PLT; the
PLT entered into force in April 2005. 1 The aim of the PLT is “to harmonize and streamline”, on a worldwide
basis, formal procedures relating to national and regional patent applications and the maintenance of
patents. In particular, the PLT provides maximum sets of requirements that the office of a contracting
party could apply. This means that a contracting party is free to provide for requirements that are more
generous from the viewpoint of applicants and owners. The provisions of the PLT apply to national and
regional patent applications and patents as well as to international applications under the Patent Cooperation
Treaty (PCT) once these applications have entered the “national phase”.
During the past few years the main features of the PLT have been implemented in a number of national
patent laws and in regional patent treaties. During the EPC 2000 revision, the European Patent Convention
(EPC) was adapted to the PLT. 2
1 Patent Law Treaty; at http://www.wipo.int/treaties/en/ip/plt/ [Accessed March 29, 2011].
2 “Revision of the European Patent Convention (EPC 2000): Synoptic Presentation EPC 1973/2000 — Part I: The Articles” [2007] EPO Official
Journal, Special Edition No.4; comment in relation to article 120 EPC, at http://www.epo.org/patents/law/legal-texts/journal/2007.html [Accessed
March 29, 2011]; “Revision of the European Patent Convention (EPC 2000). Synoptic presentation EPC 1973/2000 — Part II: The EPC Implementing
Regulations” [2007] EPO Official Journal, Special Edition No.5; comment in relation to EPC r.59, at http://www.epo.org/patents/law/legal-texts/journal
/2007.html [Accessed March 29, 2011]. Also see Cees Mulder and Derk Visser: “Filing Date Requirements under the EPC — An Option to Extend
Subject-matter?” (2010) 2 epi Information 44, at http://216.92.57.242/patentepi/en/Information/epi-information.php [Accessed March 29, 2011]; Cees
Mulder and Derk Visser: “Filing Date Requirements under the EPC — Filing by Reference to a Previously Filed Application” (2010) 4 epi Information
126.
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