Legal framework
The PCT route is used to pursue protection for an invention in designated states. WIPO’s PCT Applicant’s Guide explains that an international application must be an application for the protection of an invention and cannot validly be filed for forms of industrial property outside inventions, such as purely ornamental designs.
Under Article 2(i) and (ii) PCT, references to an “application” and a “patent” include not only patents for inventions, but also certain related rights such as utility models, where the national law of the designated state provides for them.
Under Article 43 PCT, where the law of a designated or elected state provides for utility models or similar forms of protection, the applicant may indicate that the international application is for that type of protection rather than for a patent.
Statement a)
Statement a) is false.
The applicant cannot enter a French national phase and obtain a French national patent based on the PCT application, because France has closed the national PCT route.
The WIPO PCT Applicant’s Guide for France states that the French national route is closed and refers applicants to the European route. It also lists the available type of PCT protection for France as European patents, not French national patents.
Thus, protection in France based on a PCT application is pursued through the European phase before the EPO, followed by effect of the European patent in France, not by direct French national phase entry.
Statement b)
Statement b) is true.
China is available via the PCT route for a national patent. WIPO’s table of types of protection available via the PCT lists China as providing protection by national patent.
Therefore, the applicant may enter the Chinese national phase and seek a Chinese patent, subject of course to meeting the usual national phase requirements and the substantive requirements under Chinese law.
Statement c)
Statement c) is true.
China also allows the applicant to obtain a utility model on the basis of a PCT application. WIPO’s PCT Applicant’s Guide for China states that, if the applicant wishes to obtain a utility model instead of a patent in China, the applicant must indicate this when performing the acts for national phase entry under PCT Article 22 or 39.
Therefore, the applicant can enter the Chinese national phase and seek a Chinese utility model, provided the correct indication is made and the Chinese national requirements are met.
Statement d)
Statement d) is false.
A U.S. design patent protects an ornamental design, not an invention in the PCT sense. The PCT system is for international applications concerning inventions. WIPO’s PCT Applicant’s Guide expressly states that an international application cannot validly be filed for purely ornamental designs.
The WIPO table of types of protection available via the PCT lists the United States as available for a national patent, but it does not list design patent protection as a PCT type of protection.
Thus, a PCT application cannot be used to enter the U.S. national phase and obtain a U.S. design patent.
Exam tip
For PCT route questions, separate designation from available national protection. Not every PCT contracting state offers a direct national route, and not every national IP right can be obtained via PCT. France is a classic example of a closed national route: use the European route. China is a classic example where a utility model can be obtained via PCT. Designs are outside the PCT invention framework.
Legal Disclaimer
The information provided in this post is for general informational purposes only and does not constitute legal advice. This content should not be used as a substitute for professional legal advice tailored to your specific circumstances. For advice related to any specific legal matters, you should consult a qualified attorney.