Annex of circular C. PCT 1372

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within the priority period in this particular case was an isolated human error. In the statement of reasons, the applicant or agent should usually outline the number of years the assistant has been entrusted with the particular task, the level of training and supervision provided to the assistant, and whether the assistant has performed all his duties diligently in the past.

(f) Docketing System Error

Docketing system errors can be divided into human entry errors (see paragraphs (b) and (e) above) and technical errors (e.g. software malfunction or server crashes). Where the applicant or agent failed to timely file the international application due to a technical error, the applicant or agent may have acted with all “due care” if he demonstrates that he set up a reliable and well functioning reminder system, had sufficient knowledge of the use and operation of the system, sufficiently trained and supervised staff on the use of the system, arranged reliable back-up and entry review (a second person that independently checks the correct entry of dates) procedures, and that the technical error occurred unexpectedly and was as such not foreseeable. (g) Facsimile or Software Submission Failure

Where an applicant or agent fails to timely file a PCT application due to a transmission error using facsimile, or any filing software, an applicant or agent has to show that the error occurred due to an external technical problem that was beyond the

applicant’s/agent’s control in order to satisfy the “due care” criterion (for facsimile submissions, see also Rule 92.4(c) which puts the risk of an unsuccessful transmission on the side of the applicant). A prudent applicant or agent takes particular care and vigilance when he files an international application on the last day or even during the last hours of the priority period. This includes the preparation of the necessary facilities for the filing of the PCT application reasonably in advance of the expiration of the priority period, such as where the applicant or agent chooses to file electronically, a well-functioning computer system, the installation of the latest filing software and the digital certificate, a reliable Internet connection and sufficient knowledge of the software used, and where the applicant or agent chooses to file via facsimile, a well-functioning fax machine. Where a prudent applicant or agent experiences technical problems during the submission of an international application, the applicant or agent exhausts all reasonable alternative means to timely file the international application (such as hand delivery, express mail, submission via fax instead of electronic filing, use of a different fax machine, submission to a different fax number within the same receiving Office, filing with another receiving Office in a different time zone which is competent for the main applicant).

(h) Postal Service Difficulties

Where an applicant fails to timely file a PCT application due to postal service errors, the receiving Office should apply the underlying idea of Rule 82.1 when evaluating whether an applicant or agent acted with all “due care” required by the circumstances. A prudent applicant or agent mails an international application to the receiving Office at least five days prior to the expiration of the priority period by registered airmail (applicants or agents need not use airmail if surface mail normally arrives within two days of mailing or if airmail is unavailable). The applicant or agent may have acted with all “due care” if the filing of the international application would have been timely under normal circumstances and the postal delay was unforeseeable.