What countries are considered for establishing a date of invention under pre-AIA 35 U.S.C. 104?

This page is an FAQ based on guidance from the Manual of Patent Examining Procedure. It is provided as guidance, with links to the ground truth sources. This is information only: it is not legal advice.

Under pre-AIA 35 U.S.C. 104, an applicant or patentee can establish a date of invention by referencing knowledge, use, or other activity in the United States, NAFTA countries, or WTO member countries. The MPEP states:

“Under 37 CFR 1.131(a), which provides for the establishment of a date of completion of the invention in a NAFTA or WTO member country, as well as in the United States, the applicant or patent owner can establish a date of completion in a NAFTA member country on or after December 8, 1993, […] and can establish a date of completion in a WTO member country other than a NAFTA member country on or after January 1, 1996.”

It’s important to note that this provision applies to pre-AIA applications and is not applicable to applications subject to the first inventor to file provisions of the AIA unless being relied upon to overcome a rejection under pre-AIA 35 U.S.C. 102(g).