1893 National Stage (U.S. National Application Filed Under 35 U.S.C. 371) [R-07.2022]

Created On
byChhabra Law Firm

There are four types of U.S. national applications: a national stage application under 35 U.S.C. 371, a regular domestic national application filed under 35 U.S.C. 111(a), a provisional application filed under 35 U.S.C. 111(b), and an international design application filed under the Hague Agreement in which the Office has received a copy of the international registration pursuant to Hague Agreement Article 10. See 37 CFR 1.9.

An applicant who uses the Patent Cooperation Treaty gains the benefit of:

  • (A) a delay in the time when papers must be submitted to the national offices;
  • (B) an international search (to judge the level of the relevant prior art) and a written opinion on the question of whether the claimed invention appears to be novel, to involve an inventive step (to be non-obvious), and to be industrially applicable before having to expend resources for filing fees, translations and other costs;
  • (C) a delay in the expenditure of fees;
  • (D) additional time for research;
  • (E) additional time to evaluate financial, marketing, commercial and other considerations; and
  • (F) the option of obtaining international preliminary examination.

The time delay is, however, the benefit most often recognized as primary. Ultimately, applicant might choose to submit the national stage application. The national stage is unique compared to a domestic national application in that:

  • (A) it is submitted later (i.e., normally 30 months from a claimed priority date as compared to 12 months for a domestic application claiming priority); and
  • (B) the status of the prior art is generally known before the national stage begins and this is not necessarily so in a domestic national application.

IDENTIFICATION OF THE NATIONAL STAGE APPLICATION

Once an international application entering the U.S. national phase (“national stage application”) has been accorded a U.S. application number (the two digit series code followed by a six digit serial number), that number should be used whenever papers or other communications are directed to the USPTO regarding the national stage application. See 37 CFR 1.5(a). The national stage application is tracked through the Patent Data Portal system by the eight digit U.S. application number. Therefore, processing is expedited if the U.S. application number is indicated. The international application number, international filing date, and the national stage entry date under 35 U.S.C. 371 (if such has been accorded) should also be included, as such would also be helpful for identification purposes and can be used to cross-check a possibly erroneous U.S. application number.