§ 371. — National stage: Commencement.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 35USC371]
TITLE 35--PATENTS
PART IV--PATENT COOPERATION TREATY
CHAPTER 37--NATIONAL STAGE
Sec. 371. National stage: Commencement
(a) Receipt from the International Bureau of copies of international
applications with any amendments 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 applicable time limit under
article 22(1) or (2), or under article 39(1)(a) of the treaty \1\
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\1\ So in original. Probably should be followed by a period.
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(c) The applicant shall file in the Patent and Trademark Office--
(1) the national fee provided in section 41(a) of this title;
(2) a copy of the international application, unless not required
under subsection (a) of this section or already communicated by the
International Bureau, and a translation into the English language of
the international application, if it 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 Patent and 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 of this title) complying with the
requirements of section 115 of this 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 requirements with respect to the national fee referred to in
subsection (c)(1), 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 subsection (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 of
the application by the parties thereof, unless it be 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 accepting the national fee referred to in subsection (c)(1) or the
oath or declaration referred to in subsection (c)(4) of this section if
these requirements are not met by the date of the commencement of the
national stage. The requirements of subsection (c)(3) of this section
shall be complied with by the date of the commencement of the national
stage, and failure to do so shall be regarded as a cancellation of the
amendments to the claims in the international application made under
article 19 of the treaty. The requirement of subsection (c)(5) shall be
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) After an international application has entered the national
stage, no patent may be granted or refused thereon before the expiration
of the applicable time 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 of the
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 application is in
order for such purpose and the applicable requirements of subsection (c)
of this section have been complied with.
(Added Pub. L. 94-131, Sec. 1, Nov. 14, 1975, 89 Stat. 688; amended Pub.
L. 98-622, title IV, Secs. 402(a)-(d), 403(a), Nov. 8, 1984, 98 Stat.
3391, 3392; Pub. L. 99-616, Sec. 7, Nov. 6, 1986, 100 Stat. 3486; Pub.
L. 102-204, Sec. 5(g)(2), Dec. 10, 1991, 105 Stat. 1641; Pub. L. 106-
113, div. B, Sec. 1000(a)(9) [title IV, Sec. 4732(a)(10)(A)], Nov. 29,
1999, 113 Stat. 1536, 1501A-582; Pub. L. 107-273, div. C, title III,
Sec. 13206(a)(20), (b)(1)(B), Nov. 2, 2002, 116 Stat. 1905, 1906.)
Amendments
2002--Subsec. (d). Pub. L. 107-273, Sec. 13206(b)(1)(B), made
technical correction to directory language of Pub. L. 106-113. See 1999
Amendment note below.
Pub. L. 107-273, Sec. 13206(a)(20), inserted period at end.
1999--Subsec. (d). Pub. L. 106-113, as amended by Pub. L. 107-273,
Sec. 13206(b)(1)(B), substituted ``Director'' for ``Commissioner''
wherever appearing.
1991--Subsec. (c)(1). Pub. L. 102-204 substituted ``provided in
section 41(a) of this title'' for ``prescribed under section 376(a)(4)
of this part''.
1986--Subsec. (a). Pub. L. 99-616, Sec. 7(a), amended subsec. (a)
generally. Prior to amendment, subsec. (a) read as follows: ``Receipt
from the International Bureau of copies of international applications
with amendments to the claims, if any, and international search reports
may be required in the case of all international applications
designating the United States.''
Subsec. (b). Pub. L. 99-616, Sec. 7(b), amended subsec. (b)
generally, substituting ``, or under article 39(1)(a) of the treaty''
for ``of the treaty.''
Subsec. (c)(4), (5). Pub. L. 99-616, Sec. 7(c), (d), substituted a
semicolon for a period at end of par. (4) and added par. (5).
Subsec. (d). Pub. L. 99-616, Sec. 7(e), inserted ``The requirement
of subsection (c)(5) shall be complied with at such time as may be fixed
by the Commissioner and failure to do so shall be regarded as
cancellation of the amendments made under article 34(2)(b) of the
treaty'' at end.
Subsec. (e). Pub. L. 99-616, Sec. 7(f), inserted ``or article 41''
after ``article 28''.
1984--Subsec. (a). Pub. L. 98-622, Sec. 402(a), substituted ``may
be'' for ``is'' and struck out ``, except those filed in the Patent
Office'' after ``United States'', which amendment was executed by
striking out ``, except those filed in the Patent and Trademark Office''
as the probable intent of Congress in view of the amendment by section
403(a) of Pub. L. 98-622. See Effective Date of 1984 Amendment note
below.
Pub. L. 98-622, Sec. 403(a), substituted ``Patent and Trademark
Office'' for ``Patent Office''.
Subsec. (b). Pub. L. 98-622 struck out ``, at which time the
applicant shall have complied with the applicable requirements specified
in subsection (c) of this section'' after ``of the treaty''.
Subsec. (c). Pub. L. 98-622, Sec. 403(a), substituted ``Patent and
Trademark Office'' for ``Patent Office'' in provisions preceding par.
(1) and in par. (3).
Subsec. (c)(2). Pub. L. 98-622, Sec. 402(c)(1), (2), substituted
``communicated by'' for ``received from'' and struck out ``verified''
before ``translation''.
Subsec. (d). Pub. L. 98-622, Sec. 402(d), substituted provisions
setting forth time periods for compliance with the requirements of
subsec. (c), payments of surcharges, and the effect of failure to comply
for provisions related only to the effect of failure to comply with the
requirements of subsec. (c).
Effective Date of 1999 Amendment
Amendment by Pub. L. 106-113 effective 4 months after Nov. 29, 1999,
see section 1000(a)(9) [title IV, Sec. 4731] of Pub. L. 106-113, set out
as a note under section 1 of this title.
Effective Date of 1986 Amendment
Amendment by Pub. L. 99-616 effective July 1, 1987, and applicable
to all international applications pending before or after that date, see
section 9 of Pub. L. 99-616, set out as a note under section 351 of this
title.
Effective Date of 1984 Amendment
Amendment by section 402(a)-(d) of Pub. L. 98-622 effective six
months after Nov. 8, 1984, see section 406(b) of Pub. L. 98-622, set out
as a note under section 3 of this title.
Amendment by section 403(a) of Pub. L. 98-622 effective Nov. 8,
1984, see section 406(a) of Pub. L. 98-622, set out as a note under
section 351 of this title.
Effective Date
Chapter effective Jan. 24, 1978, and applicable to international and
national applications filed, on and after that date, see section 11 of
Pub. L. 94-131, set out as a note under section 351 of this title.
Section Referred to in Other Sections
This section is referred to in sections 154, 366 of this title.
