It is not affordable that even micro entities like students or employees pay PCT application fee which is too high. Application fee for nonprovisional utility US patent is reasonable. Following US patent application will I still have right to apply for PCT even after a product produced and sold in a WIPO member Non-US country?
1 Answer
Once you apply for your first US patent application (whether provisional or nonprovisional), you have 12 months to file a PCT application claiming priority to the original US filing. This means your PCT is evaluated as if it was filed when your US application was. If you wait longer than 12 months from your first US patent application, then your PCT application will be evaluated at the date you file the PCT application.
So this is the ideal approach:
1 January 2014: You file a US provisional (or nonprovisional, it doesn't matter) application.
1 October 2014: You produce and sell some of your products.
1 January 2015: You apply for a PCT application claiming priority to your US application. Your PCT application is evaluated as at 1 January 2014, which is before you produced and sold your product. So you are fine.
You want to avoid this:
1 January 2014: You file a US provisional (or nonprovisional, it doesn't matter) application.
1 October 2014: You produce and sell some of your products.
1 March 2015: You apply for a PCT application. You are too late to claim priority to your US application. Your PCT application is evaluated as at 1 March 2015, which is after you produced and sold your product. So the claims of your PCT application will likely lack novelty (and therefore be unallowable).
It doesn't matter whether the production and sale is in a WIPO member country or not. The outcome is the same.
Alternative approach
If the cost of the PCT application is an issue (and, to be fair, they are very expensive for what you get), you may want to consider filing in other countries directly at the 12 month date. This can be significantly more cost effective, as some countries have rather low official fees (though of course the local patent attorney will still make up most of the cost of filing and prosecution).
Notably, the UK, Canada, Australia, New Zealand are all reasonably cheap and no translation would be needed. Germany, China and South Korea are all reasonably moderate too, though translations are needed (which can significantly increase the cost). Your local friendly patent attorney would probably be able to give you exact costs.
