When an inventor in India develops a groundbreaking product or process, protecting it only within the country’s borders can be a significant limitation – especially in a competitive global market. The Patent Cooperation Treaty (PCT), administered by the World Intellectual Property Organization (WIPO), offers a structured, phased pathway to seek patent protection across up to 158 countries through a single international application. Understanding this procedure – step by step – is essential for anyone serious about international IP strategy.
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What the PCT actually does (and doesn’t do)
A common misconception is that a PCT application results in an “international patent.” It does not. The PCT establishes a unified filing procedure, giving inventors a single application that is treated as a pending patent application in all PCT member states simultaneously. The actual decision to grant or reject a patent always rests with the individual national or regional patent offices. Think of the PCT as a gateway – it opens doors to multiple countries, but each country still decides independently whether to let you through.
The PCT procedure is divided into two broad phases: the International Phase and the National/Regional Phase. The international phase itself has two sub-chapters – Chapter I (mandatory) and Chapter II (optional). Each phase has specific timelines and actions tied to the priority date, which is generally the date of the earliest filed patent application for the same invention.
Step 1: Filing the international application
The process begins when the applicant files a PCT application with a Receiving Office (RO). For Indian applicants, this is typically the Indian Patent Office (IPO), which has been recognised as both a Receiving Office and, since October 2013, an International Searching Authority (ISA) and International Preliminary Examining Authority (IPEA). Alternatively, applicants can file directly with WIPO’s International Bureau.
The PCT application must include the following components:
- Request form (PCT/RO/101): The formal request for international filing.
- Description: A complete written disclosure of the invention.
- Claims: Defining the scope of protection sought.
- Abstract: A brief technical summary.
- Drawings: Where applicable to understand the invention.
The application must be filed within 12 months from the priority date (i.e., the date of the first national filing) if the applicant wishes to claim priority under the Paris Convention. It can also be filed directly as an original PCT application without any prior national filing. The filing language must be accepted by both the Receiving Office and the chosen ISA – English is the most practical option for Indian applicants given its wide acceptance.
One critical compliance point for Indian inventors: under Section 39 of the Indian Patents Act, 1970, an inventor must either file first in India and wait six weeks (during which secrecy directions may be issued), or obtain a Foreign Filing Licence (FFL) via Form 25 before filing abroad. Skipping this step can jeopardize the application entirely.
Upon receipt, the Receiving Office performs a formality examination – checking whether the application is complete and correctly filed – and assigns an international filing date. This date is pivotal because all subsequent timelines are calculated from it (or from the priority date, whichever applies).
Step 2: International search
Once the application is filed, the Receiving Office forwards it to the designated International Searching Authority (ISA). The ISA conducts a comprehensive search of prior art – published patents, technical literature, and other documents – to assess whether the invention is novel and involves an inventive step.
The outcome is an International Search Report (ISR), which lists prior art documents that could affect patentability, and a Written Opinion of the ISA (WO-ISA), which provides a preliminary, non-binding assessment of whether the invention appears to meet the conditions of patentability – novelty, inventive step, and industrial applicability.
This step is completed within 16 months from the priority date. The ISA sends both the ISR and Written Opinion to the applicant and to WIPO’s International Bureau. Upon receiving this report, the applicant has an important decision to make: continue with the application, amend the claims under PCT Article 19 in light of the ISR, or withdraw the application if the search results make grant unlikely across target countries.
The Written Opinion is not public at this stage – it remains confidential until the application is published, giving the applicant time to strategise. This is one of the PCT system’s most valuable features: early, informed feedback before committing to expensive national filings.
Step 3: International publication
Approximately 18 months after the priority date, WIPO publishes the international application in its online database PATENTSCOPE. This publication includes the application as filed, the ISR, and any Article 19 amendments the applicant may have submitted. The application is published in one of the PCT publication languages: Chinese, English, French, German, Japanese, Russian, or Spanish.
Publication serves a dual function. First, it puts the world on notice of the applicant’s patent rights – establishing a global “patent pending” status. Second, it provides the public and third parties with access to the technical information in the application. Until this point, the application is confidential. After publication, it is accessible to anyone on PATENTSCOPE.
Applicants should note that while publication cannot be prevented once 18 months have elapsed, an application can be withdrawn before that deadline to avoid public disclosure – useful if the inventor decides not to pursue international protection after reviewing the ISR.
Step 4: Optional international preliminary examination (Chapter II)
The international preliminary examination is entirely optional, but it can be highly strategic. Under Chapter II of the PCT, the applicant can file a formal “demand” for examination by an International Preliminary Examining Authority (IPEA), which is often the same authority as the ISA.
The demand must be filed before the later of: (a) three months from the date of transmittal of the ISR and Written Opinion, or (b) 22 months from the priority date. The IPEA then conducts a more thorough patentability analysis – typically on a version of the application that the applicant has amended to address objections raised in the Written Opinion. This interactive process allows applicants to argue their case, amend claims, and respond to the examiner’s findings.
The result is an International Preliminary Report on Patentability – Chapter II (IPRP Chapter II), commonly called the IPER. This is a detailed, non-binding report on novelty, inventive step, and industrial applicability. While national patent offices are not bound by the IPER’s conclusions, a positive IPER can significantly smooth national phase examination, as examiners in designated countries often give considerable weight to an IPEA’s findings.
For Indian applicants: the Indian Patent Office functions as an IPEA, meaning Indian inventors can pursue Chapter II examination domestically. This can reduce costs and procedural complexity.
If the applicant does not file a demand, a Chapter I IPRP is automatically generated from the Written Opinion of the ISA and transmitted to designated national offices at 30 months from the priority date. This still serves as a useful reference during national phase examination.
Step 5: Entering the national phase
The national phase is where the PCT application transitions into individual country-level applications. Applicants must enter the national phase in each country where they seek patent protection – and this must be done within the applicable deadline, which is generally 30 months from the priority date for most countries. India is an exception: the deadline for national phase entry in India is 31 months, with a possible extension of up to 6 months on payment of additional fees.
National phase entry requires the applicant to:
- Pay the applicable national or regional filing fees to each designated office.
- File translations of the application where the country’s official language differs from the PCT filing language.
- Appoint a local patent agent or attorney, where required by national law.
- Submit any additional documents required under local law.
For India specifically, the Indian Patent Office does not permit amendments at the time of national phase entry – unlike many other jurisdictions. This makes it critical that any desired amendments (such as those under PCT Articles 19 or 34) are completed and reflected in WIPO’s public records before Indian national phase entry. Once filed, the IPO examines the application under the provisions of the Patents Act, 1970, following its own rules and timelines.
After national phase entry, each national or regional patent office independently examines the application and decides whether to grant or reject the patent. The PCT search and preliminary examination reports serve as reference documents – helpful but not binding. The term of patent protection in every country where a patent is granted runs from the international filing date, ensuring uniformity in the duration of rights across all jurisdictions.
Why the phased structure matters
The PCT’s most significant practical benefit is time. Applicants get up to 30 months from their priority date before they must commit to expensive national filings – nearly double the 12-month Paris Convention window. This window allows inventors and businesses to gauge market potential, assess commercial viability, secure investment, and make strategic decisions about which countries genuinely warrant patent protection, all while knowing their rights are internationally protected in pending status. The ISR and IPER add informational value to this window – allowing applicants to recalibrate their strategy based on actual patentability data rather than guesswork.
For Indian applicants in particular, the inclusion of the IPO as both an ISA and IPEA since 2013 means that the entire international phase can be handled domestically, with the option to engage WIPO’s International Bureau for publication and administrative coordination. This reduces dependency on foreign patent offices for the core search and examination functions during the international phase.
What do you think? Given that the PCT process can span over two and a half years before national phase patents are granted, how should a startup or individual inventor plan their commercialisation strategy around these timelines? And with the Indian Patent Office now functioning as an ISA and IPEA, does this change the calculus for Indian inventors when deciding between the PCT route and direct national filings under the Paris Convention?
References
- https://www.wipo.int/en/web/pct-system/faqs/faqs
- https://en.wikipedia.org/wiki/Patent_Cooperation_Treaty
- https://origiin.com/patent-filing-process-india-and-pct/
- https://www.iiprd.com/pct-patent-application-filing-process/
- https://ssrana.in/ip-laws/patents/pct-filing-procedure-india/
- https://naarm.org.in/VirtualLearning/vlc/pct2.htm
- https://patentpc.com/blog/how-to-file-a-patent-application-under-the-pct-system
- https://www.mewburn.com/law-practice-library/international-pct-patent-applications-the-basics
- https://www.uspto.gov/web/offices/pac/mpep/s1842.html
- https://outlierpatentattorneys.com/pct-applications
- https://www.aipla.org/list/innovate-articles/entering-the-national-phase-of-patent-applications-in-india-under-the-patent-cooperation-treaty
- https://ip-coster.com/IPGuides/patent-pct-india
- https://www.fillun.com/pct-timeline
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