How can a U.S. national stage application claim benefit under 35 U.S.C. 120 and 365(c) of a prior application?
To claim benefit under 35 U.S.C. 120 and 365(c) of a prior filed copending nonprovisional application or prior filed copending international application designating the United States, the national stage application must meet these requirements:
- Comply with 37 CFR 1.78(d).
- The prior application must name at least one inventor also named in the later filed international application.
- The prior application must disclose the named inventor’s invention claimed in at least one claim of the national stage application.
- The national stage application must contain a reference to the prior application, identifying it by application number or international application number and filing date.
The MPEP states: “The required reference to the earlier filed application must be submitted within the time period set forth in 37 CFR 1.78(d)(3). This time period is not extendable and failure to timely submit the required reference to the earlier application will be considered a waiver of any benefit under 35 U.S.C. 120, 121, or 365(c) to such prior-filed application.”
Note that a national stage application cannot claim benefit of its own international application’s filing date, as they have the same filing date.
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