How is foreign priority handled when the application is in issue?
When a claim for foreign priority or the certified copy of the foreign application is filed after the date of payment of the issue fee but before the patent is granted, special procedures apply.
According to the MPEP: When the claim for foreign priority or the certified copy of the foreign application is filed after the date of payment of the issue fee but prior to the date of grant of the patent, the foreign priority claim or certified copy will be placed in the file record but there may be no review of the papers and the patent when published will not include the priority claim.
To have the foreign priority claim or certified copy considered after publication of the patent:
- A certificate of correction under 35 U.S.C. 255 and 37 CFR 1.323 can be filed
- For original applications under 35 U.S.C. 111(a) or national stage applications under 35 U.S.C. 371, a grantable petition to accept an unintentionally delayed claim for priority under 37 CFR 1.55 and the petition fee must be filed with the certificate of correction
For more information on this process, refer to MPEP § 216.01.
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