The Patent Cooperation Treaty

1. Search report and written opinion

Once you've filed your application and paid the fee, we'll send you an International Search Report (ISR) and a Written Opinion (WO). Australia is an International Search Authority, which means we'll complete this report for you.

The written report will examine your application based on the following:

• Is the invention new and novel?
• Is it inventive, and different enough to what has been done previously?
• Is it useful, and can be made or used in an industry?

We'll aim to send this to you within three months of when your application was filed. You can make amendments to your claims based on the report's findings.

If you choose not to change your application, the WO is published as the International Preliminary Report on Patentability (IPRPI).

Amend your claims

You can make amendments to claims in your original application under PCT Article 19. You'll need to do this within two months of receiving the ISR and WO reports, or within 16 months of the earliest priority date — whichever is later. The amendments won't be examined. They'll be published along with the original claims in your application.

To make the amendments, you'll need to send your amended claims and your reasons for making them to WIPO's International Bureau (IB). You can upload them through ePCT.

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2. Examination of an international application

After receiving your ISR and WO reports, you can file a demand for an international preliminary examination.

This gives you time to evaluate your chances of getting a patent before you file applications in individual countries. You can ask to amend any part of your application, or file a response to objections, to overcome any issues identified in the ISR and WO report.

Once your demand is received and paid for, we:

• Will assess your PCT application and any response and/or amendments you've made
• May issue a further report to give you the opportunity to respond to any issues we've identified, either by filing a further response or amendments.

The international preliminary examination process finishes when we issue our final report — the International Preliminary Report on Patentability (IPRPII). This report will either be issued when there are no outstanding matters or no later than 28 months from the earliest priority date.

Our findings will not grant you a patent. The granting of patent protection remains the responsibility of the national or regional offices where you enter the national phase. While the IPRPII is authoritative and may be considered during the national phase, it's not binding.

You can learn more about the interpretation of our reports in the PCT applicant's guide.

3. Publication of an international application

WIPO will publish your PCT application and the ISR 18 months after the earliest priority date, unless you've withdrawn your application.

Your application will be published even if the ISR hasn't been issued. If this is the case, the ISR will be published at a later date.

Once your PCT application has been published, it's publicly available.

Your PCT application doesn't give you a granted patent. You'll need to apply for a patent in each country where you want protection. This is called entering the national phase.

You should use the time after filing your PCT application to:

• Decide how you'll commercialise your IP
• Decide which countries you want to seek patent protection in by filing a national phase entry.

Entering the national phase

What to consider

Before you look to enter the national phase, understand that:

• You don’t have to enter the national phase in all countries under the PCT, only those where you're seeking patent protection
• An International Preliminary Report on Patentability (IPRPI) or International Preliminary Report on Patentability (IPRPII), which indicates no problems in your PCT application (known as a clear report), doesn’t automatically lead to a patent being granted in any member country
• You don’t need a clear report to enter the national phase.

Australian requirements

In Australia, you have up to 31 months after your earliest priority date to enter the national phase.

In order to enter the Australian national phase, you're also required to:

1. Advise us that you'd like to enter the national phase
2. Provide details of your related PCT application
3. Provide us with an Australian address for service
4. Pay the required national phase entry fee which is $400 filed electronically through our online services channel (or $600 otherwise)
5. Provide a verified English translation if your PCT application is in another language.

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Other country requirements

You should check the requirements of each individual country, including:

1. The time limit
2. Criteria of assessment
3. Laws
4. Costs.

Some patent offices may not accept applications in English. You'll need to engage an IP professional to help translate your application documents. This can add considerably to your costs.

Engage an IP professional

I've received my international search report and opinion. When do I get my Australian patent?

If you want to protect your idea in Australia then you'll need to enter the national phase. This is similar to converting your PCT application into an Australian patent application. This Australian patent application is examined and granted, and gives you an enforceable right in Australia. You can use your PCT application to apply for an Australian patent up to 31 months from your earliest priority date. This will be the date when you filed your provisional, or when you filed your PCT application if you didn't have a provisional.

Why do I have to apply again for an Australian patent when I've already applied at IP Australia for a PCT application?

When dealing with PCT applications, we're working as an International Receiving Office for the World Intellectual Property Organisation (WIPO). When you file for an Australian patent, we're serving as the Australian Patent Office. The process and steps your PCT international application goes through results in a search report and written opinion. This will help you decide whether you want to seek patent protection in specific countries where you want to protect your product. If you want to protect your idea in Australia then you'll need to enter the national phase. This is similar to converting your PCT application into an Australian patent application. It's this Australian patent application that is examined and granted, and which gives you an enforceable right in Australia.

Does the PCT system give me a granted patent?

No. The PCT system provides an opinion on the various legal requirements regarding your application. To get a patent you must then apply and have your application assessed in each country or jurisdiction where you wish to have patent protection. The PCT system offers the advantage of having a single application that helps streamline the filing process for all countries and jurisdictions that are part of the PCT system.

I've received my international search report and opinion. What can I do if I don’t agree with the views of the examiners?

It's quite common for the international search report and opinion to say that your idea isn't new or not inventive. This isn't all bad news — using the PCT route to get an early indication of patentability can help you save longer term costs, as you may decide not to continue or to change your IP strategy.

Broadly, you have two options:

1. You can file a demand for international examination. You can make amendments and provide submissions as to why you believe your idea can be patented
2. Wait until you enter the national phase of each country where you want patent protection. You can then make amendments and submissions to each office as to why your idea is new and inventive.

You'll need to note that national laws do vary. Even if you've progressed the first option, you may still have to make amendments and submissions during the national phase in each country you want a patent.

WIPO PCT guide

I've just filed a PCT application and realised I made some mistakes.  What do I do?

Changes to bibliographic information such as name of applicant or name of inventor can be made by filing a 92bis request in your ePCT account.

Spelling or typographical mistakes in your description and claim can be corrected by filing in ePCT. You'll need to:

• Complete a Request for Rectification
• Include the replacement pages
• Include a covering letter explaining the issues.

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I recently filed a PCT application. I’ve received a letter saying that my application is defective. What should I do?

The letter we sent you will indicate what is wrong with your application.

The most common issues relate to the format of the documents you have uploaded in ePCT such as the quality of the drawings or the layout of text in the description or claims.

In ePCT you can file Corrections (Rule 26) Replacement Substitute sheets.

Note: you can't add or delete any content. You can only make the changes requested.

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