Missing the Priority Right Deadline in Chile and Peru

Novas.Soluções, a start-up headquartered in Lisbon, developed a revolutionary cardiorespiratory piece of apparatus for which it filed a national patent application before the Portuguese Patent Office (INPI). The company considered that the invention could also be successfully exploited in other countries worldwide, notably in Chile and Peru. 

The company was aware that, in order to benefit from the right of priority, it would need to file an international patent application for the relevant countries within 12 months after the filing date of the Portuguese national application. Failure to do so would entail risking the rejection of the international application due to lack of novelty, since the original Portuguese patent would discredit it for the sake of the subsequent application. 

In this context, and just a few days before the deadline, Novas.Soluções sent an e-mail to its patent attorney instructing the filing of an international patent application under the Patent Cooperation Treaty (PCT) before the World Intellectual Property Organization (WIPO), designating Chile and Peru. Nonetheless, due to a technical issue, the e-mail was directly sent to the attorney’s spam folder. Thus, the attorney only found out about the e-mail a few days later, and the international application was filed a week after the 12-month priority period had expired.