How are foreign patent applications treated as prior art under 35 U.S.C. 102(e)?

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.

Foreign patent applications are not considered prior art under 35 U.S.C. 102(e). The MPEP states:

“Note that a foreign patent application publication, including WIPO publications of international applications, may have an earlier prior art date under 35 U.S.C. 102(a) than under 35 U.S.C. 102(e).”

This means that while foreign patent applications can be used as prior art under other subsections of 35 U.S.C. 102, they do not qualify under 102(e), which specifically applies to U.S. patent applications.