Annex of circular C. PCT 1372

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(b) Human Error by the Applicant or Agent Himself

A reasonably prudent applicant or agent recognizes the importance of meeting crucial priority deadlines and ensures that all aspects of the preparation and filing of the international application are carried out with the diligence and meticulousness needed to successfully and timely submit the international application. A human error attributable to increased workload, lost files and incompletely filed PCT applications generally lacks “due care”.

(c) Miscommunication between the Applicant and the Agent

Where the applicant appoints an agent, both the applicant and the agent must act with “due care” in their communication with each other. A prudent applicant instructs the agent in a clear and timely manner to file the international application. A prudent agent acts upon instructions received by the applicant and clarifies with the applicant in case of doubt. A prudent agent advises the applicant of all important matters in relation to the timely filing of an international application and the consequences of a late filing in a clear manner. A prudent applicant or agent finds alternative ways to communicate with the other person if the usual communication channels fail. Where the failure to timely file a PCT application was caused by technical difficulties (e.g. unexpected email delivery failure between the applicant and the agent), both the applicant and the agent may have acted with “due care” if they can demonstrate that the system had worked reliably in the past and that the breakdown could not have been anticipated by either party.

(d) Absence from the Office by the Applicant or Agent

Where an applicant or agent is absent from the office at the expiration of the priority period, a prudent applicant or agent either files the international application in advance insofar as the absence was predictable, or instructs another person to timely file the international application during his absence. For example, a prudent applicant with a scheduled absence from the Office due to vacation or a medical appointment checks whether the priority period for the filing of an international application expires during this absence and instructs an agent, a colleague or a staff member to file the international application on his behalf. In addition, a prudent agent/applicant maintains a reliable communication system that provides other persons in the office with access to important communications so that other persons can receive and react upon filing instructions in case of unplanned absences. For example, a prudent agent ensures that instructions to file an international application are sent to an email account to which several persons have access. An applicant or agent generally fails to demonstrate “due care” if he failed to timely file a PCT application due to illness or vacation. Only in cases where the applicant or agent fell unexpectedly ill and needed urgent treatment that prohibited all communication with other persons the failure to timely file an international application may have occurred in spite of “due care”.

(e) Human Error by the Agent’s or Applicant’s Staff

An applicant or agent may entrust administrative staff (non-attorneys such as assistants or paralegals) with the performance of certain administrative tasks. A prudent applicant or agent carefully chooses, trains and monitors the work of a reliable, experienced, adequately trained and supervised employee. A human error by an assistant in the docketing, monitoring, preparation or filing of the international application is not attributed to the applicant or agent if the applicant or agent can show that “due care” was exercised in the management of the assistant and the failure to file