PCT claiming priority of US Provisional not in English

[UVAgal4]

Hello all.
  I am wondering whether someone can help me with this.
If a provisional application is filed in the US in a langauge other than English, and the certified English translation is never filed, then the PCT is filed claiming priority of the non-English US Provisional, is there any problem?
It seems to me that the PCT can validly claim the priority of the US Provisional, even though the provisional later becomes abandoned, but would there be a problem when entering into national phase before the USPTO?
I found this in MPEP 201.11 (Claiming the benefit of an earlier filing date):
(iv)If the prior-filed provisional application was filed in a language other than English and both an English-language translation of the prior-filed provisional application and a statement
that the translation is accurate were not previously filed in the prior-filed provisional application, applicant will be notified and given a period of time within which to file, in the prior-filed provisional application, the translation and the statement. If the notice is mailed in a pending nonprovisional application, a timely reply to such a notice must include the filing in the nonprovisional application of either a confirmation that the translation and statement
were filed in the provisional application, or an amendment or Supplemental Application Data Sheet withdrawing the benefit claim, or the nonprovisional application will be abandoned. The translation and statement may be filed in the provisional application,
even if the provisional application has become abandoned.<


Is it just that later, when entering into national phase, a certified copy of the translation of the provisional will have to be filed?

Does this help at all with the date that it becomes available as prior art under 102?
(ie it is available as prior art sooner than if the translation is not filed until national phase?)

Thanks.

[vman11]

All my filings have been in English, so no first hand experience; but I can't help but concur that the cited portion of MPEP seems to say that the USPTO will give you notice and allow you to file a certified translation of a prior filed provisional in another language.

I do not see how the language of a US provisional patent application has any impact for determination of 102 dates. If I remember correct offhand, language of a reference is only of relevance in regards to 102(e). Only a U.S. patent, a U.S. application publication (  35 U.S.C. 122(b)) or a WIPO publication of an international application under PCT Article 21(2) qualify as references that can be cited under 102(e); but a provisional application is neither of these.

Note: I assume the PCT application was filed / published in English, which is a separate issue all by itself from your question regarding the provisional filing.

[bartmans]

I do not know why you have put this question in the topic 'European patents' since it seems to be a US problem.

Normally a priority right can be invoked for an application that rightfully has received a filing date. Under the PLT (but as far as I know, the US has not yet ratified that treaty) a filing date can be obtained if something is filed which seems to be an application (may be in any language), if this filing seems to be a request for getting a patent and if the filing particulars allow to identify an applicant.
For instance, a piece of paper saying 'I want a patent' and a telephone number, accompanied with a technical drawing or a Chinese text would be sufficient for getting a filing date.
For invoking a priority right, the application does not need to be pending, thus even if no filing fees are paid, or no translation is filed, the right for priority is not lost.

Thus, is the US provisional filed in a foreign language would qualify for getting a filing date (and apparently that is the case) it would be eligible for claiming priority.
The additional requirements for priority documents under PCT are to be found in Rule 17 PCT. If you filed the PCT with the USPTO, you do not need to provide a copy. If you file the PCT with the EPO, JPO or the IB (and may be others), you also do not have to supply a copy, since they have agreements with the USPTO that they will get a copy from the USPTO. If you filed the PCT elsewhere you probably have to provide a certified copy (Rule 17(1)a).
No further requirements as to translation or whatsoever have to be met during the pCT phase. If however, you would file a European regional application from this PCT application you would need to provide a translation of the priority document, if it was not in English, German or French. From your story, it also appears that the USA has a similar requirement (but then, of course, only for English).

Whether or not you would jeopardize 102(e) is something I can not determine. You need the advice of a US patent agent or attorney on that.