Patent Cooperation Treaty (PCT) is one of the most significant Treaties of our times. It covers issues pertaining to grant of Patents at both National and International levels. The PCT was concluded in 1970 and it was subsequently amended in 1979, and modified in 1984 and 2001.Any States party to the Paris Convention for the Protection of Industrial Property (1883) can become a member of PCT. Once accepted, the instruments of Ratification or Accession must be deposited with the Director General of WIPO.
PCT has a distinctive advantage of seeking Patent protection for an invention simultaneously in each of a large number of countries by filing an "International Patent Application”. Such an Application may be filed by anyone who is a National or Resident of a Contracting State. It may generally be filed with the National Patent Office of the Contracting State of which the applicant is a National or Resident or, at the applicant's option, with the International Bureau of WIPO in Geneva.
If the applicant is a National or Resident of a Contracting State which is party to the European Patent Convention, the Harare Protocol on Patents and Industrial Designs (Harare Protocol), the revised Bangui Agreement Relating to the Creation of an African Intellectual Property Organization or the Eurasian Patent Convention, the International Application may also be filed with the European Patent Office (EPO), the African Regional Industrial Property Organization (ARIPO), the African Intellectual Property Organization (OAPI) or the Eurasian Patent Office (EAPO), respectively.
The International Application is then subjected to what is called an "International Search." That search is carried out by one of the major Patent Offices appointed by the PCT Assembly as an International Searching Authority (ISA). The said search results in an "International Search Report," that is, a listing of the citations of such published documents that might affect the Patentability of the Invention claimed in the International Application. At the same time, the ISA prepares a written “Opinion on Patentability”.
The International Search Report and the written opinion are communicated by the ISA to the applicant who may decide to withdraw his application, in particular where the said report or opinion makes the granting of Patents unlikely.
If the International Application is not withdrawn, it is, together with the International Search Report, published by the International Bureau. The written opinion is not published.
The procedure under the PCT has great advantages for the Applicant, the Patent Offices and the general public:
(i) The Applicant has up to 18 months more than he has in a procedure outside the PCT to reflect on the desirability of seeking protection in Foreign Countries, to appoint local patent agents in each foreign country, to prepare the necessary translations and to pay the national fees; he is assured that, if his International Application is in the form prescribed by the PCT, it cannot be rejected on “Formal Grounds” by any designated Office during the National Phase of the processing of the application; on the basis of the International Search Report or the written opinion, he can evaluate with reasonable probability the chances of his invention being patented; and the applicant has the possibility during the International Preliminary Examination to amend the International Application to put it in order before processing by the Designated Offices;
(ii) The search and examination work of Patent Offices can be considerably reduced or virtually eliminated thanks to the International Search Report, the written opinion and, where applicable, the International Preliminary Examination report that accompany the International Application;
(iii) Since each International Application is published together with an International Search Report, third parties are in a better position to formulate a well-founded opinion about the patentability of the claimed invention.
India approved the PCT and the Ministry of Minister for Foreign Affairs deposited the required instrument with the Director General of WIPO on September 7, 1998. The said instrument of accession also contained the declaration that the Government of India declares that pursuant to paragraph (5) of Article 64 of the Patent Cooperation Treaty (PCT) of 1970, it does not consider itself bound by the provisions of Article 59 of the said Treaty. PCT became “Applicable” to India from December 7, 1998.
