MPEP § 2139.01 — Effective Filing Date of a Claimed Invention Under Pre-AIA 35 U.S.C. 102 (Annotated Rules)
§2139.01 Effective Filing Date of a Claimed Invention Under Pre-AIA 35 U.S.C. 102
This page consolidates and annotates all enforceable requirements under MPEP § 2139.01, including statutory authority, regulatory rules, examiner guidance, and practice notes. It is provided as guidance, with links to the ground truth sources. This is information only, it is not legal advice.
Effective Filing Date of a Claimed Invention Under Pre-AIA 35 U.S.C. 102
This section addresses Effective Filing Date of a Claimed Invention Under Pre-AIA 35 U.S.C. 102. Primary authority: 35 U.S.C. 102, 35 U.S.C. 371, and 35 U.S.C. 363. Contains: 1 permission and 6 other statements.
Key Rules
Determining Whether Application Is AIA or Pre-AIA
In examining applications subject to pre-AIA 35 U.S.C. 102, the effective filing date of the claimed invention is the actual filing date of the U.S. application, unless situation (A), (B), or (C) as set forth below applies. Note that the actual U.S. filing date of an application that entered the national stage under 35 U.S.C. 371 is the international filing date. See 35 U.S.C. 363 and MPEP § 1893.03(b).
- (A) If the application is a continuation or divisional of one or more earlier U.S. applications or international applications and if the requirements of 35 U.S.C. 120 or 365(c) have been satisfied, the effective filing date of the claimed invention is the same as the earliest filing date in the line of continuation or divisional applications.
- (B) If the application is a continuation-in-part of an earlier U.S. application or international application, any claims in the new application not supported by the specification and claims of the parent application have an effective filing date equal to the actual filing date of the new application. Any claims which are fully supported under 35 U.S.C. 112 by the earlier parent application have the effective filing date of that earlier parent application.
- (C) If the application properly claims benefit under 35 U.S.C. 119(e) to a provisional application, the effective filing date of the claimed invention is the filing date of the provisional application for any claims which are fully supported under the first paragraph of 35 U.S.C. 112 by the provisional application.
In examining applications subject to pre-AIA 35 U.S.C. 102, the effective filing date of the claimed invention is the actual filing date of the U.S. application, unless situation (A), (B), or (C) as set forth below applies. Note that the actual U.S. filing date of an application that entered the national stage under 35 U.S.C. 371 is the international filing date. See 35 U.S.C. 363 and MPEP § 1893.03(b). (A) If the application is a continuation or divisional of one or more earlier U.S. applications or international applications and if the requirements of 35 U.S.C. 120 or 365(c) have been satisfied, the effective filing date of the claimed invention is the same as the earliest filing date in the line of continuation or divisional applications.
In examining applications subject to pre-AIA 35 U.S.C. 102, the effective filing date of the claimed invention is the actual filing date of the U.S. application, unless situation (A), (B), or (C) as set forth below applies. Note that the actual U.S. filing date of an application that entered the national stage under 35 U.S.C. 371 is the international filing date. See 35 U.S.C. 363 and MPEP § 1893.03(b).
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(B) If the application is a continuation-in-part of an earlier U.S. application or international application, any claims in the new application not supported by the specification and claims of the parent application have an effective filing date equal to the actual filing date of the new application.
In examining applications subject to pre-AIA 35 U.S.C. 102, the effective filing date of the claimed invention is the actual filing date of the U.S. application, unless situation (A), (B), or (C) as set forth below applies. Note that the actual U.S. filing date of an application that entered the national stage under 35 U.S.C. 371 is the international filing date. See 35 U.S.C. 363 and MPEP § 1893.03(b).
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Any claims which are fully supported under 35 U.S.C. 112 by the earlier parent application have the effective filing date of that earlier parent application.
In examining applications subject to pre-AIA 35 U.S.C. 102, the effective filing date of the claimed invention is the actual filing date of the U.S. application, unless situation (A), (B), or (C) as set forth below applies. Note that the actual U.S. filing date of an application that entered the national stage under 35 U.S.C. 371 is the international filing date. See 35 U.S.C. 363 and MPEP § 1893.03(b).
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(C) If the application properly claims benefit under 35 U.S.C. 119(e) to a provisional application, the effective filing date of the claimed invention is the filing date of the provisional application for any claims which are fully supported under the first paragraph of 35 U.S.C. 112 by the provisional application.
The effective filing date for claims subject to pre-AIA 35 U.S.C. 102 is not the filing date of the foreign priority document, although the filing date of the foreign priority document may be used to overcome certain references. See MPEP § 2136.05 et seq.
Article 19 Amendment Scope
See MPEP § 1893.03(c), subsection III for benefit claims under 35 U.S.C. 119(e), 120, or 365(c) in an application that entered the national stage under 35 U.S.C. 371. See MPEP §§ 211.01(c) and 1895 for additional information on determining the effective filing dates of claimed inventions in a continuation, divisional, or continuation-in-part of a PCT application designating the U.S. See also MPEP §§ 1895.01 and 1896 which discuss differences between applications filed under 35 U.S.C. 111(a) and international applications that enter national stage under 35 U.S.C. 371.
Citations
| Primary topic | Citation |
|---|---|
| Determining Whether Application Is AIA or Pre-AIA | 35 U.S.C. § 102 |
| Article 19 Amendment Scope | 35 U.S.C. § 111(a) |
| Determining Whether Application Is AIA or Pre-AIA | 35 U.S.C. § 112 |
| Article 19 Amendment Scope Determining Whether Application Is AIA or Pre-AIA | 35 U.S.C. § 119(e) |
| Determining Whether Application Is AIA or Pre-AIA | 35 U.S.C. § 120 |
| Determining Whether Application Is AIA or Pre-AIA | 35 U.S.C. § 363 |
| Article 19 Amendment Scope Determining Whether Application Is AIA or Pre-AIA | 35 U.S.C. § 371 |
| Determining Whether Application Is AIA or Pre-AIA | MPEP § 1893.03(b) |
| Article 19 Amendment Scope | MPEP § 1893.03(c) |
| Article 19 Amendment Scope | MPEP § 1895.01 |
| Article 19 Amendment Scope | MPEP § 211.01(c) |
| Determining Whether Application Is AIA or Pre-AIA | MPEP § 2136.05 |
Source Text from USPTO’s MPEP
This is an exact copy of the MPEP from the USPTO. It is here for your reference to see the section in context.
Official MPEP § 2139.01 — Effective Filing Date of a Claimed Invention Under Pre-AIA 35 U.S.C. 102
Source: USPTO2139.01 Effective Filing Date of a Claimed Invention Under Pre-AIA 35 U.S.C. 102 [R-10.2019]
In examining applications subject to pre-AIA 35 U.S.C. 102, the effective filing date of the claimed invention is the actual filing date of the U.S. application, unless situation (A), (B), or (C) as set forth below applies. Note that the actual U.S. filing date of an application that entered the national stage under 35 U.S.C. 371 is the international filing date. See 35 U.S.C. 363 and MPEP § 1893.03(b).
- (A) If the application is a continuation or divisional of one or more earlier U.S. applications or international applications and if the requirements of 35 U.S.C. 120 or 365(c) have been satisfied, the effective filing date of the claimed invention is the same as the earliest filing date in the line of continuation or divisional applications.
- (B) If the application is a continuation-in-part of an earlier U.S. application or international application, any claims in the new application not supported by the specification and claims of the parent application have an effective filing date equal to the actual filing date of the new application. Any claims which are fully supported under 35 U.S.C. 112 by the earlier parent application have the effective filing date of that earlier parent application.
- (C) If the application properly claims benefit under 35 U.S.C. 119(e) to a provisional application, the effective filing date of the claimed invention is the filing date of the provisional application for any claims which are fully supported under the first paragraph of 35 U.S.C. 112 by the provisional application.
The effective filing date for claims subject to pre-AIA 35 U.S.C. 102 is not the filing date of the foreign priority document, although the filing date of the foreign priority document may be used to overcome certain references. See MPEP § 2136.05et seq.
See MPEP § 1893.03(c), subsection III for benefit claims under 35 U.S.C. 119(e), 120, or 365(c) in an application that entered the national stage under 35 U.S.C. 371. See MPEP §§ 211.01(c) and 1895 for additional information on determining the effective filing dates of claimed inventions in a continuation, divisional, or continuation-in-part of a PCT application designating the U.S. See also MPEP §§ 1895.01 and 1896 which discuss differences between applications filed under 35 U.S.C. 111(a) and international applications that enter national stage under 35 U.S.C. 371.