Annex of circular C. PCT 1372

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(Rule 26bis.3(a)). The receiving Office may also apply both criteria. In such a case, the Office is free to apply, upon request by the applicant or at its own initiative, first the “due care” criterion and, if it finds that that criterion is not satisfied, the “unintentionality” criterion. If the receiving Office applies both criteria and finds that the failure to timely file the international application was unintentional but that due care had not been exercised, the receiving Office may indicate this intent to partially refuse restoration of priority under the due care criterion in Form PCT/RO/158, and explain that restoration will nevertheless be allowed under the unintentional criterion, by text in the Annex to that Form. If the applicant requests the restoration of multiple priority claims, and where the use of a single Form (PCT/RO/158

and/or PCT/RO/159) would not be sufficiently clear, the receiving Office should use a separate Form for each priority claim concerned.

166F. Statement of Reasons.

Rule 26bis.3(b)(ii) requires that a request to restore the right of priority should state the reasons for failure to timely file the international application. The applicant should therefore provide a summary of the facts or circumstances surrounding the failure to file the international application in time including, where applicable, actions that were taken by the applicant to prepare and file the international application.

166F. Statement of Reasons. Under Rule 26bis.3(b)(ii), the applicant is required to explain why he failed to file the international application within the priority period. The statement should describe in detail the facts and circumstances that led to the late filing and any remedial or alternative steps taken to attempt a timely filing of the international application. If the receiving Office finds the statement of reasons insufficient to determine whether the applicant satisfies the applicable criteria, the receiving Office may invite the applicant to submit further information by way of a revised statement within a reasonable time limit (item2 of Form PCT/RO/158). The receiving Office explains in detail, by text in the Annex to that Form, why it finds the statement insufficient. In this notification, the receiving Office may also require the applicant to submit a declaration or other evidence in support of the statement of reasons (see paragraph 166G). If the applicant does not respond to that notification within the time limit, the receiving Office proceeds as outlined in paragraph 166O. If the applicant submits new arguments in response to that notification and the receiving Office decides to restore the right of priority, the Office proceeds as outlined in

paragraph166O. If the applicant submits new arguments in response to that notification and the receiving Office nevertheless intends to (partially) refuse the request to restore the right of priority, the receiving Office proceeds as outlined in paragraph 166N.

166G166G. Declaration and Evidence. Under Rule 26bis.3(f), the receiving Office may require the applicant to submit a declaration or other evidence in support of the statement of reasons be furnished or, if some evidence has already been provided, that to submit additional evidence be furnished. within a reasonable time limit (items 3 and 4 of

Form PCT/RO/158). For the “unintentionality unintentionality” criterion, a statement indicating that the failure to comply with the priority period was not intentional on purpose should generally be sufficient. The receiving Office may, however, require that this statement be submitted in the form of a declaration. For the “due care” criterion, the receiving Office may require that the statement of reasons is substantiated with a declaration or other evidence. The submitted declaration or evidence should enable the receiving Office to determine whether the failure to file the international application within the priority period occurred in spite of due care, that is, if all reasonable care was taken under the circumstances to ensure that the priority period would not be missed.

166H. Criteria Applied by the Receiving Office. The receiving Office, when deciding on a request for restoration, is free to apply either the more strict criterion of “due care”

(Rule 26bis.3(a)(i)) or the less strict criterion of “unintentionality” (Rule 26bis.3(a)(ii)). The receiving Office may also apply both criteria. In such a case, since a positive finding of “due care” in effect encompasses a finding of “unintentional” conduct, the receiving Office should,