How does the incorporation by reference work for foreign priority applications?

Incorporation by reference for foreign priority applications is an important safeguard for applicants. Here’s how it works:

• For applications filed on or after September 21, 2004, a claim under 37 CFR 1.55 for priority of a prior-filed foreign application is considered an incorporation by reference of the prior-filed foreign priority application.
• This incorporation is subject to the conditions and requirements of 37 CFR 1.57(b).
• It applies to inadvertently omitted material from the foreign priority application.
• Applicants can provide an explicit incorporation by reference statement for broader coverage.

The MPEP states: For applications filed on or after September 21, 2004, a claim under 37 CFR 1.55 for priority of a prior-filed foreign application that was present on the filing date of the application is considered an incorporation by reference of the prior-filed foreign priority application as to inadvertently omitted material, subject to the conditions and requirements of 37 CFR 1.57(b). This provision helps protect applicants from accidental omissions in their U.S. applications.

To learn more:

• incorporation by reference
• foreign priority
• inadvertently omitted material
• patent application