If a PCT patent was filed in lets say "Ukraine" in 2004, but the owner let it never actually got it published as a patent in a national phase(in any country)legally may I file a similar patent in the USA?


2 Answers 2


You didn’t invent it and, at this point it’s not new, so no.

In the US patent applications need an identified inventor. In respect to this invention you are not an inventor so you have no legal or ethical grounds to file it.

If someone did refile it in the US the examiner would likely find the PCT publication and it would be rejected. Any registered practitioner who helped you knowing you were not the inventor will be in trouble with the USPTO.


The information you are giving us is a little confusing. A PCT patent application may be filed through almost every member-state (like Ukraine), but it will still be a PCT application and published with the prefix "WO". Is that what you meant?

Is there a PCT publication, in this respect? If so, regardless if it entered a national phase or not, it still is a published application and constitutes prior art.

On the other hand, noone stops you from filling a similar patent application in the US. Whether or not you will be able to overcome objections related to this prior art is a more complex matter. You will find it in your way, in any case.

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