Restoration of priority in patent cases

If you have missed the twelve-month deadline for submitting a subsequent patent application, you have the opportunity to request that priority be restored.

From 1st July 2019, it is possible to have priority restored in patent cases where the deadline has been exceeded. 
The possibility of restoring priority applies to: 

  • national patent applications
  • international patent applications (PCT applications) which are submitted to the Norwegian Industrial Property Office (NIPO) as the receiving office
  • international patent applications (PCT applications) which are submitted to the NIPO as the designated office

Below is an overview of which rules and deadlines apply. 

For national applications

The conditions for having the priority restored are that: 

  • The postponement must have been unintentional 
  • You must deliver the application for which priority is claimed, the claim for priority and the request for restoration to the NIPO within two months after the end of the twelve-month period 
  • You must pay a fee of NOK 3,000 (invoiced by the NIPO) 

It should be noted, however, that the priority cannot be restored if the request for restoration is submitted after the preparations to make the patent application publicly available have been completed. 

For international patent applications (PCT applications) submitted to the NIPO as receiving authority (RO)

The conditions for having the priority restored are that: 

  • The postponement must have been unintentional 
  • The international application date cannot be later than two months after the expiry of the twelve-month period, and you must submit a claim for priority and a request for reinstatement to the NIPO within the same period 
  • You must pay a fee of NOK 3,000 (invoiced by the NIPO) 

It Should be noted, however, that the priority cannot be restored if the request for restoration is submitted after the preparations for international publication of the patent application have been completed. 

For international patent applications (PCT applications) submitted to the NIPO as the designated office 

If the receiving authority (RO) has refused to restore the priority for an international patent application that is thereafter submitted to the Norwegian Industrial Property Office (NIPO) as the designated office, or has rejected such a petition, you can ask the NIPO to restore the priority for the continued application. 

The conditions for having the priority restored are: 

  • The postponement must have been unintentional 
  • The international application date cannot be later than two months after the end of the twelve-month period. You must also have submitted a claim for priority and a request for restoration to the receiving authority within the same deadline. 
  • You must submit a request for reinstatement to the NIPO within one month after the expiry of the 31-month period in Section 31 of the Norwegian Patents Act (but still no later than one month after you have possibly requested earlier processing in accordance with Article 23 (2) of the Convention on Patent Cooperation). 
  • You must pay a fee of NOK 3,000 (invoiced by the NIPO) 

If the receiving authority has restored priority, the Norwegian Patent Office shall use this decision as a basis, unless we believe that the Norwegian conditions for restoration were not met. In these cases, the applicant is given the opportunity to make a statement before the NIPO makes a decision. 

What is meant by the fact that the deadline must be "unintentional"?

That the deadline must have been unintentional means that the patent applicant, patent holder or attorney has not deliberately missed the deadline. 

The NIPO takes your specific explanation as the basis without further examination. It is therefore not necessary for you to give a long and comprehensive explanation. It is still not sufficient that you simply state that you had a general intention to continue the proceedings or retain the right. You must therefore give a concrete explanation in which you describe your reason for exceeding the deadline. 

Read more about the requirements that apply to have the application or IPR restored

Possibility of appeal

You can appeal against decisions from the NIPO regarding the restoration of priority to the Norwegian Board of Appeal for Industrial Property Rights (KFIR). 

Read more about how you can appeal against decisions made by the Patent Office 

The consequence of your request for restoration of priority 

If you ask for priority to be restored, the patent application shall be considered as an application with priority until the claim for restoration is finally decided. This means, among other things, that the application will be made generally available when 18 months have passed from the priority date. 

The consequence of your request for restoration of priority

If you ask for priority to be restored, the patent application shall be considered as an application with priority until the claim for restoration is finally decided. This means, among other things, that the application will be made generally available when 18 months have passed from the priority date. 

Restoration of priority for European patent applications?

The provisions in the Norwegian Patents Act on restoration of priority do not apply to European patent applications, but there are rules for restoration of priority in the European Patent Convention Article 122 and Rule 136 of the Convention. 

Restoration of design and trademark priority? 

Restoration of priority is still not possible for designs and trademarks. 

Do you have questions? 

Are you wondering about anything related to the restoration of priority in patent cases? Contact our customer center on tel. +47 22 38 73 00 

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