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Applicant's initially deposited application must **>be clearly identified as a submission to enter the< ** national stage ** under 35 U.S.C. 371 >.< ** >See< 37 CFR 1.495(g)). Otherwise, the application will be treated as an application filed under 35 U.S.C. 111(a).
That is, if applicant wishes the application to be filed under 35 U.S.C. 111(a), applicant's originally filed application papers need indicate simply that the papers are for a new U.S. patent application. If, however, applicant is filing papers for entry into the national stage of a PCT application, or to establish an effective date for provisional rights resulting from the filing of a PCT application under 35 U.S.C. 154(d), applicant must so state. See 37 CFR 1.417 * and 1.495(g). If the applicant's papers are not clearly identified as **>a submission pursuant to 35 U.S.C. 154(d)(4) or a submission to enter the national stage under 35 U.S.C. 371,< the submission will be considered as being made under 35 U.S.C. 111(a). As provided in 37 CFR ** 1.495(g), a copy of the international publication and/or a translation of the international application >as filed and< identified as provided in 37 CFR 1.417 can be used to fulfill the 35 U.S.C. 371(c)(2) requirements. Examination of the originally filed application papers occurs in either the Office of Initial Patent Examination or in the National Stage Processing Division of the Office of PCT Operations where it is determined whether applicant has asked that the papers be treated as a >submission to enter the< national stage * under 35 U.S.C. 371. If the application is accepted for entry into the national stage, the National Stage Processing Division will fill out and mail Form PCT/DO/EO/903 indicating acceptance of the application as a national stage filing under 35 U.S.C. 371 and will stamp the face of the file with an indication that the application is >"<filed under 35 U.S.C. 371.>"< Accordingly, the three key indicators which reflect that an application is >an application which entered the national stage from an international application after compliance with< ** 35 U.S.C. 371 are:
(A) The file face indication of **>"filed< under 35 U.S.C. 371>";<
(B) The Form PCT/DO/EO/903 indicating acceptance of the application as a national stage **>application which has met the requirements of< 35 U.S.C. 371; and
(C) Applicant's statement (or the equivalent) in the originally filed application papers that the application is a **>submission to enter the national stage< under 35 U.S.C. 371. Applicants who use transmittal Form PCT/DO/EO/1390 will satisfy the requirement for such a statement since the form includes an indication that the application is a national stage filing under 35 U.S.C. 371.
Initially, the examiner should inspect the face of the file wrapper and/or the PALM bib-data sheet for an indication that it is filed under 35 U.S.C. 371 and should also check the application papers for the presence of Form PCT/DO/EO/903. If neither of these indications are present the application may, in the absence of evidence to the contrary (there is an indication in the originally filed application papers that processing as a national stage is desired), be treated as a filing under 35 U.S.C. 111(a). Thus, if both indications are present, the application should be treated as a filing under 35 U.S.C. 371. If the face of the file wrapper does not indicate a filing under 35 U.S.C. 371, but a properly completed Form PCT/DO/EO/903 is in the file, the examiner should complete the face of the file by adding "filed under 35 U.S.C. 371" in the upper left margin thereof. The examiner should initial and date this change. If the file wrapper does not include a properly completed Form PCT/DO/EO/903 but the face of the file indicates a filing under 35 U.S.C. 371, the application should be returned to the National Stage Processing Division of the Office of PCT Operations for certification that the application has been accepted for the national stage.
In accordance with the notice at 1077 O.G. 13 (14 April 1987), if the applicant files a U.S. national application and clearly identifies in the accompanying oath or declaration the specification to which it is directed by referring to a particular international application by PCT Application Number and International Filing Date and that he or she is executing the declaration as, and seeking a U.S. Patent as, the inventor of the invention described in the identified international application, then the application will be accepted as filed under 35 U.S.C. 371. Merely claiming priority of an international (PCT) application in an oath or declaration will not serve to indicate a filing under 35 U.S.C. 371. Also, if there are any conflicting instructions as to whether the filing is under 35 U.S.C. 111(a) or 35 U.S.C. 371, the application will be accepted as filed under 35 U.S.C. 111(a).
Form PCT Filed Under 35 USC 371
Form PCT/DO/DO/903. Notification Of Acceptance Of Application Under 35 U.s.c. 371 And 37 Cfr 1.494 Or 1.495
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