Late PCT national phase: restoration versus the 31-month EPO route
Helvetic Microfluidics AG files PCT application PCT/CH2023/000021 on 20 February 2023 with the IPI as receiving Office, claiming priority from Swiss application CH 00045/23 filed 10 January 2023. The PCT application is in German and designates Switzerland and the EPO. The applicant intends to enter the Swiss national phase and the EP regional phase. A docketing error records the Swiss 30-month deadline as 10 August 2025 instead of the correct date. On 4 August 2025 the applicant files documents only for the Swiss national phase and pays the national fee. On 12 August 2025 the IPI notes that the Swiss national phase deadline was missed and asks whether restoration is requested. The applicant has evidence that the deadline was entered incorrectly because the paralegal confused the 30-month PCT deadline with the 31-month EPO deadline. No translation was filed because the PCT application is in German.
1. Calculate the relevant deadlines and assess whether the 4 August 2025 Swiss national-phase filing is timely.
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The priority date is 10 January 2023. The PCT 30-month national-phase deadline for Switzerland is 10 July 2025. The 4 August 2025 filing is therefore 25 days late. The Swiss national phase is not timely, and the IPI is correct to raise the issue.
The EPO regional-phase deadline is different: 31 months from the priority date, i.e. 10 August 2025. The 4 August 2025 filing falls within that period, but the applicant filed Swiss national-phase documents, not an EP regional-phase request. Filing the wrong route does not automatically satisfy the other route. The applicant must check whether it has already filed an EP regional-phase request or can still do so by 10 August 2025. If not, it has missed both the Swiss 30-month date and, after 10 August, the EPO 31-month date.
The German-language PCT application means no translation is needed for the Swiss national phase or the EPO regional phase. Translation is not the problem; the problem is the route and the date.
2. Can the IPI restore the Swiss national phase under PCT Rule 49.6? What must Helvetic show, and what is the risk?
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PCT Rule 49.6 allows a designated Office to restore the national phase if the failure to perform the act within the time limit was unintentional or, depending on the Office's practice, occurred despite due care. The request must be filed within the prescribed period, normally two months from the expiry of the national-phase time limit, and a fee and evidence are required. Here, 4 August 2025 is within two months of 10 July 2025, so the request is not too late on timing.
The substance is less certain. A docketing error caused by confusing the 30-month and 31-month deadlines can support an argument that the failure was unintentional, but the applicant must give a full, consistent explanation: who entered the date, what source was used, why the error was not detected, and what checks existed. A bare assertion of 'inadvertence' is weak. The IPI may also consider whether the error was avoidable by ordinary professional care. If the firm had no docketing system or ignored an automatic reminder, restoration is at risk.
The commercial risk is high because there is no simple fallback. The Swiss priority expired on 10 January 2024. A fresh Swiss application filed after 10 July 2025 would not enjoy priority, and the PCT publication may itself become prior art. Restoration is therefore worth requesting, but it should not be the only plan.
3. What alternative route can preserve Swiss protection, and what should the applicant do immediately?
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The better route is the EP regional phase. The PCT designates the EPO, and the EPO deadline is 31 months from 10 January 2023, i.e. 10 August 2025. The applicant is still inside that window on 4 August 2025. It should immediately file a complete EP regional-phase request, pay the fees, and designate Switzerland. After grant, the European patent can be validated in Switzerland. This avoids dependence on Rule 49.6 and keeps a single examination procedure for several states.
The applicant should also file the Rule 49.6 restoration request for the Swiss national phase as a parallel safety net. The two routes are not mutually exclusive, but the applicant must manage costs and avoid inconsistent statements. If the EP route is used, the Swiss national-phase application may be abandoned once the EP validation route is secure.
Finally, the docketing error should be corrected and documented. The applicant should not wait for the IPI's deadline to expire; the EP regional-phase request must be filed by 10 August 2025. Missing that date would leave only restoration arguments and a likely fatal prior-art problem.