Patent Law FAQ
This FAQ answers all your questions about patent law, patent procedure, and the patent examination process.
MPEP 2100 – Patentability (1)
No, a PCT application does not need to enter the national stage in the United States to be considered prior art under the AIA. The MPEP clearly states:
Thus, under the AIA, WIPO publications of PCT applications that designate the United States are treated as U.S. patent application publications for prior art purposes, regardless of the international filing date, whether they are published in English, or whether the PCT international application enters the national stage in the United States.
This means that as long as the PCT application designates the United States and is published by WIPO, it can be used as prior art under AIA 35 U.S.C. 102(a)(2). This is a significant change from pre-AIA law and expands the scope of prior art that must be considered in patentability determinations.
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MPEP 2154.01(A) – Wipo Published Applications (1)
No, a PCT application does not need to enter the national stage in the United States to be considered prior art under the AIA. The MPEP clearly states:
Thus, under the AIA, WIPO publications of PCT applications that designate the United States are treated as U.S. patent application publications for prior art purposes, regardless of the international filing date, whether they are published in English, or whether the PCT international application enters the national stage in the United States.
This means that as long as the PCT application designates the United States and is published by WIPO, it can be used as prior art under AIA 35 U.S.C. 102(a)(2). This is a significant change from pre-AIA law and expands the scope of prior art that must be considered in patentability determinations.
To learn more:
Patent Law (3)
No, a PCT application does not need to enter the national stage in the United States to be considered prior art under the AIA. The MPEP clearly states:
Thus, under the AIA, WIPO publications of PCT applications that designate the United States are treated as U.S. patent application publications for prior art purposes, regardless of the international filing date, whether they are published in English, or whether the PCT international application enters the national stage in the United States.
This means that as long as the PCT application designates the United States and is published by WIPO, it can be used as prior art under AIA 35 U.S.C. 102(a)(2). This is a significant change from pre-AIA law and expands the scope of prior art that must be considered in patentability determinations.
To learn more:
The 30-month period for national stage entry is calculated from the priority date of the international application. The priority date is typically the filing date of the earliest application whose priority is claimed in the international application.
MPEP 601.04 states: “For most applications, the 30-month time period for entry into the national stage expires on the same day of the month as the date of the priority claim in the 30th subsequent month.” However, it’s important to note that if the 30-month period expires on a Saturday, Sunday, or federal holiday, the period is extended to the next succeeding business day.
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The inventorship of an international application entering the national stage under 35 U.S.C. 371 is determined according to 37 CFR 1.41(e), which states:
The inventorship of an international application entering the national stage under 35 U.S.C. 371 is the inventor or joint inventors set forth in the application data sheet in accordance with § 1.76 filed with the initial submission under 35 U.S.C. 371.
This means that applicants can change inventorship as to the U.S. at the time of national stage entry by simply filing an application data sheet naming the inventor or joint inventors with the initial submission under 35 U.S.C. 371.
If no application data sheet is provided, the inventorship is the inventor or joint inventors set forth in the international application, including any changes made under PCT Rule 92bis. It’s important to note that 37 CFR 1.41(e) does not allow naming inventors via the inventor’s oath or declaration if an application data sheet is not provided.
To learn more:
Patent Procedure (3)
No, a PCT application does not need to enter the national stage in the United States to be considered prior art under the AIA. The MPEP clearly states:
Thus, under the AIA, WIPO publications of PCT applications that designate the United States are treated as U.S. patent application publications for prior art purposes, regardless of the international filing date, whether they are published in English, or whether the PCT international application enters the national stage in the United States.
This means that as long as the PCT application designates the United States and is published by WIPO, it can be used as prior art under AIA 35 U.S.C. 102(a)(2). This is a significant change from pre-AIA law and expands the scope of prior art that must be considered in patentability determinations.
To learn more:
The 30-month period for national stage entry is calculated from the priority date of the international application. The priority date is typically the filing date of the earliest application whose priority is claimed in the international application.
MPEP 601.04 states: “For most applications, the 30-month time period for entry into the national stage expires on the same day of the month as the date of the priority claim in the 30th subsequent month.” However, it’s important to note that if the 30-month period expires on a Saturday, Sunday, or federal holiday, the period is extended to the next succeeding business day.
To learn more:
The inventorship of an international application entering the national stage under 35 U.S.C. 371 is determined according to 37 CFR 1.41(e), which states:
The inventorship of an international application entering the national stage under 35 U.S.C. 371 is the inventor or joint inventors set forth in the application data sheet in accordance with § 1.76 filed with the initial submission under 35 U.S.C. 371.
This means that applicants can change inventorship as to the U.S. at the time of national stage entry by simply filing an application data sheet naming the inventor or joint inventors with the initial submission under 35 U.S.C. 371.
If no application data sheet is provided, the inventorship is the inventor or joint inventors set forth in the international application, including any changes made under PCT Rule 92bis. It’s important to note that 37 CFR 1.41(e) does not allow naming inventors via the inventor’s oath or declaration if an application data sheet is not provided.
To learn more: