How are international applications treated under pre-AIA 35 U.S.C. 102(e)?

The treatment of international applications under pre-AIA 35 U.S.C. 102(e) depends on their filing date and other factors:

For international applications filed on or after November 29, 2000:

• If the application meets three conditions: (1) international filing date on or after November 29, 2000, (2) designated the United States, and (3) published under PCT Article 21(2) in English, the international filing date is treated as a U.S. filing date for prior art purposes under pre-AIA 35 U.S.C. 102(e).
• If the application doesn’t meet all these conditions, it’s not treated as having a U.S. filing date for pre-AIA 35 U.S.C. 102(e) purposes.

For international applications filed before November 29, 2000:

These are subject to the pre-AIPA version of 35 U.S.C. 102(e). For U.S. patents resulting from such applications, the reference date is the earlier of:

• The date of completion of the requirements of 35 U.S.C. 371(c)(1), (2) and (4)
• The filing date of the later-filed U.S. application that claimed the benefit of the international application

The MPEP states: If an international application has an international filing date prior to November 29, 2000, the reference should be applied under the provisions of 35 U.S.C. 102 and 374 as in force on November 28, 2000 (prior to the AIPA amendments).

To learn more:

• international applications
• PCT
• pre-AIA 35 U.S.C. 102(e)
• patent prior art