Further guidance on Section 22

Every application filed at the Intellectual Property Office – whether it is a UK national application, or an international application under the EPC or PCT – is screened to check whether it should be placed under directions according to Section 22 of the Patents Act 1977. We will write to you within six weeks of filing your application if such directions are imposed. An address for service within the United Kingdom will be required for all applications placed under Section 22 directions.

The directions under Section 22 may only be lifted after your application has been inspected by the Ministry of Defence. This inspection will normally be done 18 months from your application’s priority date (or filing date if no priority is claimed). A form DP2 can be filed to request early inspection of your application by the Ministry of Defence (we will send a copy of this form to you when we notify you of the directions); it may be in your interest to return this form to us as soon as possible if you think the directions should not remain in force.

The following is a brief guide to the procedures for the different types of application if placed under Section 22 directions.

1. UK national applications

Your application can undergo search and examination whilst under the directions, but it will not be published or granted until the directions are lifted. You will also be restricted by law from discussing the contents of your application to any person without prior permission from the Intellectual Property Office. Filing equivalent applications abroad will also not be possible unless permission is obtained from us. However, once the directions are revoked, publication and grant will be possible, subject of course to the normal requirements for all UK patent applications.

2. EP applications under the European Patent Convention (EPC)

If an EP application is placed under Section 22 directions it will not be forwarded to the EPO until the directions are revoked. If the directions remain in force 14 months from the priority date of your application (or the filing date if no priority is claimed), then the application will be treated as withdrawn under Article 75 of the EPC. Section 81 of the Patents Act then allows you to request conversion of your European application into a national application in the UK. Similarly, subject to permission from the Intellectual Property Office, it may also be possible to convert your EP application into national applications in other EPC member countries under Article 135 of the EPC.

3. International applications under the Patent Cooperation Treaty (PCT)

An international application under the PCT will not be forwarded to the International Bureau of WIPO until the directions under Section 22 have been revoked. If the directions remain in force 14 months from the priority date, the international application will be treated as withdrawn under rule 22.1 of the PCT. The application may proceed in the UK by requesting early entry into the national phase in accordance with Section 89A(3)(b) of the Patents Act 1977.

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