If Applicant not a US citizen or national, or
the application is in different language (i.e. for US/RO not in english)

application still receives a filing date, but app. is sent to IB

(A) The description and claims are in German.
(B) The Request is signed by a registered attorney rather than the applicant.
(C) The sole applicant is a Canadian resident and national.
(D) The application does not contain a claim.
(E) The application is not accompanied by any fees.

Answer key: correct choice is D) app does not contain a claim. The explanation says tha A) and C) are incorrect b/c PCT Rule 19.4 says that if an application is not filed in the prescribed language or is filed by an applicant for which the Office to which the application is submitted is not competent, such application will be forwarded to the International Bureau which will act as receiving Office and accord a filing date as of the date of receipt in the USPTO

1810 – “An all too common occurrence is that applicants will file an international application in the U.S. Receiving Office and no applicant has a U.S. residence or nationality. Applicants are cautioned to be sure that at least one applicant is a resident or national of the U.S. before filing in the U.S. Receiving Office. Where no applicant indicated on the request papers is a resident or national of the United States, the USPTO is not a competent receiving Office for the international application under PCT Rule 19.1(a).”

See 1810 (with arrows added for emphasis): “PCT Rule 19.4 provides for transmittal of an international application to the International Bureau as Receiving Office in certain instances. For example, when the international application is filed with the United States Receiving Office and the language in which the international application is filed is not accepted by the United States Receiving Office, or if the applicant does not have the requisite residence or nationality, the application may be forwarded to the International Bureau for processing in its capacity as a Receiving Office. See 37 CFR 1.412(c)(6). >>The Receiving Office of the International Bureau will consider the international application to be received as of the date accorded by the United States Receiving Office.<>or is in a language accepted under PCT Rule 12.1(a) by the International Bureau as a Receiving Office.<<”

Note that his is in accordance with PCT Rule 19.4, which I don’t believe is in conflict with any US rules (i.e., there isn’t a US Rule which supplants PCT Rule 19.4, and therefore PCT RUle 19.4 applies).

1803 states that the US has taken a “reservation” to the PCT rules: meaning it will ignore those specific rules. The PCT rules that are “ignored” require a RO to afford the filing date to an application that does not comport to the RO’s language requirements. So, under the PCT rules, the US would have to grant the filing date to the Spanish application even though it violates the USC rule that all apps must be in English to get a filing date. That means that they will not obey the PCT rules and will accordingly not grant a filing date to any application not in the RO’s designated language (here Spanish).

Pay special attention to the paragraph of 1810 quoted above. There is no mention of according a filing date as of the date received. However, the paragraph in section 1810 preceding the quoted paragraph explicitly states that an application that does not comply with the requirement of having nationals as applicants will still be afforded a filing date:

“Nonetheless, the date the international application was filed in the USPTO will not be lost as a filing date for the international application if at least one applicant is a resident or national of any PCT Contracting State.”

Such statement is noticeably absent from the paragraph discussing affording filing date. Therefore, filing date is date received by International RO.