- At this stage, the US non provisional patent will be claiming the PCT patent not the provisional patent. As long as the PCT preserves the provisional priority date, I should be OK. Right?
You are missing the point. Did you read the statute I pointed you to in my previous post? U.S. law simply will not allow one to circumvent the filing deadlines for a provisional patent by filing a PCT application.
Second, I think you are misunderstanding the role of the PCT. The PCT is not a separate application that can, on its own, become a patent -- it simply allows one to file in individual countries in a predictable manner without worrying about doing it all at once to preserve a priority date. But each individual national stage application is going to be subject to its own national laws.
In the case of a U.S. national stage application, under 35 U.S.C. 119, if the national stage is not entered within 12 months of the PCT priority date, the priority date of the provisional is lost, and the PCT filing date is the new priority date. In the case of a PCT claiming priority to a provisional, the priority date is the filing date of the provisional application. Under 35 U.S.C. 119, if the national stage application in the U.S. is not received within 12 months of the PCT priority date -- which is the filing date of the provisional application -- the priority date is lost, and the filing date of the PCT application itself becomes the priority date.
There simply is not a way to get around the 12-month time limit for a provisional application simply bu going the PCT route.
- Are you sure the PCT won't allow claiming the provisional?
A provisional application can be the basis for a priority claim for a PCT application -- but U.S. law requires that the U.S. national stage be entered within 12 months, or the priority date is lost.
If claims are required, do the claims in the PCT patent have to be the exact ones in the provisional patent?
Claims are not required for the PCT priority claim
per se, but are generally required in order to enter the national stage of the EPO and most European countries.