Legal framework
Under Article 45 PCT, where a state is party both to the PCT and to a regional patent treaty, national law may provide that designation or election of that state in a PCT application has the effect of an indication that a regional patent is sought. This is the basis on which some EPC contracting states close the direct national route and require applicants to use the Euro-PCT route instead.
The EPO PCT Guidelines list the EPC contracting states that have closed the route to a national patent on the basis of an international application. That list includes France and Lithuania, but not Switzerland or Italy.
Statement a)
Statement a) is false.
The applicant may not directly enter the Lithuanian national phase to obtain a Lithuanian national patent on the basis of the PCT application.
The WIPO PCT Applicant’s Guide for Lithuania states that the competent designated/elected Office is the EPO and that the type of protection available via the PCT is European patents. It does not list a Lithuanian national patent route.
Thus, for Lithuania, protection must be pursued via the European regional phase and subsequent validation/effect in Lithuania.
Statement b)
Statement b) is true.
Switzerland does allow direct national phase entry from a PCT application.
The WIPO PCT Applicant’s Guide for Switzerland lists, for Switzerland, both national protection: CH and European patent: EP as competent designated/elected routes. It also states that the types of protection available via the PCT include national patents and European patents.
Therefore, the applicant may directly enter the Swiss national phase and seek a Swiss national patent.
Statement c)
Statement c) is false.
France has closed the direct national PCT route.
The WIPO PCT Applicant’s Guide for France lists the EPO as the relevant designated/elected Office and states that the type of protection available via the PCT is European patents.
Accordingly, a PCT applicant cannot directly enter a French national phase to obtain a French national patent. Protection for France must be pursued through the European phase before the EPO.
Statement d)
Statement d) is true.
Italy allows direct national phase entry for PCT applications filed on or after 1 July 2020. Since the client’s international application was filed in 2023, it falls after that date.
WIPO confirms that a national patent can be obtained for Italy in respect of international applications filed on or after 1 July 2020. The WIPO PCT Applicant’s Guide for Italy also contains a national phase section and gives the national phase entry time limits under PCT Articles 22 and 39.
Therefore, direct Italian national phase entry is available.
Exam tip
For EPC contracting states, do not assume that a PCT designation automatically allows a direct national phase. Some states have closed the national route and require the applicant to use the Euro-PCT route. The classic closed-route examples include France and Lithuania. By contrast, Switzerland and Italy allow direct national PCT entry, with Italy available for PCT applications filed on or after 1 July 2020.
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.