26bis.3

a)   Where the international application has an international filing date which is later than the date on which the priority period expired but within the period of two months from that date, the receiving Office shall, on the request of the applicant, and subject to paragraphs b) to g) of this Rule, restore the right of priority if the Office finds that a criterion applied by it (“criterion for restoration”) is satisfied, namely, that the failure to file the international application within the priority period:

(i)   occurred in spite of due care required by the circumstances having been taken; or

(ii)  was unintentional.

 Each receiving Office shall apply at least one of those criteria and may apply both of them.

b)   A request under paragraph a) shall:

(i)   be filed with the receiving Office within the time limit applicable under paragraph e);

(ii)  state the reasons for the failure to file the international application within the priority period; and

(iii) preferably be accompanied by any declaration or other evidence required under paragraph f).

c)   Where a priority claim in respect of the earlier application is not contained in the international application, the applicant shall submit, within the time limit applicable under paragraph e), a notice under Rule 26bis.1a) adding the priority claim.

d)   The submission of a request under paragraph (a) may be subjected by the receiving Office to the payment to it, for its own benefit, of a fee for requesting restoration, payable within the time limit applicable under paragraph (e). The amount of that fee, if any, shall be fixed by the receiving Office. The time limit for payment of the fee may be extended, at the option of the receiving Office, for a period of up to two months from the expiration of the time limit applicable under paragraph (e).

e)   The time limit referred to in paragraphs b)(i), c) and d) shall be two months from the date on which the priority period expired, provided that, where the applicant makes a request for early publication under Article 21(2)b), any request under paragraph a) or any notice referred to in paragraph c) submitted, or any fee referred to in paragraph d) paid, after the technical preparations for international publication have been completed shall be considered as not having been submitted or paid in time.

f)    The receiving Office may require that a declaration or other evidence in support of the statement of reasons referred to in paragraph (b)(ii) be filed with it within a time limit which shall be reasonable under the circumstances.

g)   The receiving Office shall not refuse, totally or in part, a request under paragraph a) without giving the applicant the opportunity to make observations on the intended refusal within a time limit which shall be reasonable under the circumstances. Such notice of intended refusal by the receiving Office may be sent to the applicant together with any invitation to file a declaration or other evidence under paragraph f).

h)   The receiving Office shall promptly:

(i)   notify the International Bureau of the receipt of a request under paragraph a);

(ii)  make a decision upon the request;

(iii) notify the applicant and the International Bureau of its decision and the criterion for restoration upon which the decision was based;

(iv) subject to paragraph (h-bis), transmit to the International Bureau all documents received from the applicant relating to the request under paragraph (a) (including a copy of the request itself, any statement of reasons referred to in paragraph (b)(ii) and any declaration or other evidence referred to in paragraph (f)).

h-bis)          The receiving Office shall, upon a reasoned request by the applicant or on its own decision, not transmit documents or parts thereof received in relation to the request under paragraph (a), if it finds that:

(i)   this document or part thereof does not obviously serve the purpose of informing the public about the international application;

(ii)  publication or public access to any such document or part thereof would clearly prejudice the personal or economic interests of any person; and

(iii) there is no prevailing public interest to have access to that document or part thereof.
Where the receiving Office decides not to transmit documents or parts thereof to the International Bureau, it shall notify the International Bureau accordingly.

i)    Each receiving Office shall inform the International Bureau of which of the criteria for restoration it applies and of any subsequent changes in that respect. The International Bureau shall promptly publish such information in the Gazette.

j)    If, on October 5, 2005, paragraphs a) to (i) are not compatible with the national law applied by the receiving Office, those paragraphs shall not apply in respect of that Office for as long as they continue not to be compatible with that law, provided that the said Office informs the International Bureau accordingly by April 5, 2006. The information received shall be promptly published by the International Bureau in the Gazette.