Patent Law FAQ
This FAQ answers all your questions about patent law, patent procedure, and the patent examination process.
Here’s the complete FAQ:
MPEP 200 - Types and Status of Application; Benefit and Priority (8)
What is the significance of the Paris Convention in foreign priority claims?
The Paris Convention plays a crucial role in foreign priority claims for patent applications. Its significance includes:
- Establishing the right of priority for patent applications among member countries.
- Allowing applicants to file in multiple countries while maintaining the original filing date.
- Providing a 12-month priority period for utility patents (6 months for design patents).
- Ensuring equal treatment of foreign and domestic applicants in member countries.
According to MPEP 213: “The right of priority is defined in Article 4 of the Paris Convention for the Protection of Industrial Property and is based on the first filing in a Paris Convention country.” This convention facilitates international patent protection by allowing inventors to secure priority dates across multiple jurisdictions.
What is the significance of the ‘right of priority’ in international patent applications?
The ‘right of priority’ is a crucial concept in international patent applications. According to MPEP 211.01(c), ‘The right of priority is defined in 35 U.S.C. 119(a).’ This right allows applicants to claim priority from an earlier filed application, which can be beneficial in establishing the novelty and non-obviousness of an invention. Specifically, the MPEP states:
‘Under certain circumstances, the right of priority may be restored even if the filing is made after the 12-month priority period. See 37 CFR 1.55(c).’
This provision offers flexibility to applicants who may have missed the standard priority deadline, potentially preserving their patent rights in certain situations.
To learn more:
To learn more:
35 U.S.C. 386 establishes the right of priority for international design applications. It addresses two key scenarios:
- National applications claiming priority from international design applications
- International design applications claiming priority from prior foreign applications
The MPEP explains:
“Pursuant to 35 U.S.C. 386(a) and 37 CFR 1.55, a nonprovisional application may make a claim of foreign priority in accordance with the conditions and requirements of 35 U.S.C. 119(a)-(d) and 172 with respect to a prior international design application that designates at least one country other than the United States.”
“Pursuant to 35 U.S.C. 386(b) and 37 CFR 1.55, an international design application designating the United States may make a claim of foreign priority in accordance with the conditions and requirements of 35 U.S.C. 119(a)-(d) and 172 and the Hague Agreement and Regulations thereunder with respect to a prior foreign application, international application (PCT) designating at least one country other than the United States, or a prior international design application designating at least one country other than the United States.”
These provisions apply to applications filed on or after May 13, 2015, and patents issued from such applications.
The right of priority in international patent law refers to the right to rely on a foreign application when filing a patent application in another country. This concept originated in the Paris Convention for the Protection of Industrial Property, which the United States adhered to in 1887.
As stated in the MPEP: The right to rely on a foreign application is known as the right of priority in international patent law and this phrase has been adopted in the U.S. statute.
This right allows applicants to claim the filing date of an earlier foreign application, providing certain conditions are met.
To learn more:
The Paris Convention for the Protection of Industrial Property is an international agreement that establishes key principles for intellectual property protection, including patents. It was first signed in 1883 and has been revised several times since then.
The Convention is significant in patent law because it established the right of priority, which allows patent applicants to claim priority based on an earlier filing in any country that is a member of the Paris Convention. This right is referenced in MPEP 213, which states:
‘The right of priority is defined in 35 U.S.C. 119(a)… Under this statute, an applicant who has filed a first foreign application is entitled to claim the benefit of the filing date of the first foreign application in a subsequent U.S. national patent application…’
This provision helps inventors protect their inventions internationally by giving them a grace period to file in multiple countries while maintaining the priority date of their first filing.
The terms ‘right of priority’ and ‘benefit of an earlier filing date’ refer to different concepts in US patent law:
- Right of priority: This term is used in the context of foreign priority under 35 U.S.C. 119(a)-(d) and 365(a) and (b). It allows a US application to claim the priority date of a foreign application filed within the previous 12 months.
- Benefit of an earlier filing date: This term is used for domestic benefit under 35 U.S.C. 119(e) and 120. It allows a US application to claim the filing date of an earlier US provisional or nonprovisional application.
As stated in MPEP 216: ‘The right of priority is a statutory right, which is not considered an application property right.’
For more information on domestic benefit, visit: domestic benefit.
For more information on foreign priority, visit: foreign priority.
For more information on right of priority, visit: right of priority.
The right of priority under 35 U.S.C. 386(a) and 386(b) applies to different types of applications. According to MPEP 213.07:
Pursuant to 35 U.S.C. 386(a) and 37 CFR 1.55, a nonprovisional application may make a claim of foreign priority in accordance with the conditions and requirements of 35 U.S.C. 119(a)-(d) and 172 with respect to a prior international design application that designates at least one country other than the United States.
This means that 35 U.S.C. 386(a) allows a nonprovisional application to claim priority based on a prior international design application.
On the other hand, 35 U.S.C. 386(b) applies differently:
Pursuant to 35 U.S.C. 386(b) and 37 CFR 1.55, an international design application designating the United States may make a claim of foreign priority in accordance with the conditions and requirements of 35 U.S.C. 119(a)-(d) and 172 and the Hague Agreement and Regulations thereunder with respect to a prior foreign application, international application (PCT) designating at least one country other than the United States, or a prior international design application designating at least one country other than the United States.
Thus, 35 U.S.C. 386(b) allows an international design application designating the United States to claim priority based on various types of prior applications.
The key differences are:
- 386(a) applies to nonprovisional applications claiming priority to international design applications.
- 386(b) applies to international design applications claiming priority to foreign applications, PCT applications, or other international design applications.
For more information on nonprovisional application, visit: nonprovisional application.
For more information on right of priority, visit: right of priority.
35 U.S.C. 365 addresses the right of priority for international applications in two key aspects:
- National applications based on international applications
- International applications based on foreign applications
The MPEP states:
“35 U.S.C. 365(a) provides that a national application shall be entitled to the right of priority based on a prior international application of whatever origin, which designated any country other than, or in addition to, the United States.”
“35 U.S.C. 365(b) provides that an international application designating the United States shall be entitled to the right of priority of a prior foreign application which may either be another international application or a regularly filed foreign application.”
These provisions ensure that applicants can claim priority based on international applications, enhancing the flexibility of the international patent system.
MPEP 200 - Types and Status of Application; Benefit and Priority Claims (2)
The most important aspect of an examiner’s action regarding a right of priority is determining the identity of invention between the U.S. and foreign applications. This involves:
- Considering the foreign application as if it had been filed in the U.S. on the same date it was filed in the foreign country
- Examining the foreign application for sufficiency of disclosure under 35 U.S.C. 112
- Determining if there is a basis for the claims sought
The MPEP states: “The most important aspect of the examiner’s action pertaining to a right of priority is the determination of the identity of invention between the U.S. and the foreign applications. The foreign application may be considered in the same manner as if it had been filed in this country on the same date that it was filed in the foreign country, and the applicant is ordinarily entitled to any claims based on such foreign application that applicant would be entitled to under U.S. laws and practice.” (MPEP 216)
Priority in patent applications refers to the ability of a later-filed application to claim the benefit of, or priority to, an earlier-filed application. This allows the later application to effectively have the filing date of the earlier application for certain purposes.
According to the MPEP, “Under certain conditions and on fulfilling certain requirements, a later-filed application for patent filed in the United States may claim the benefit of, or priority to, a prior application filed in the United States (see 35 U.S.C. 119(e), 120, 121, 365(c), and 386(c); see also 37 CFR 1.78) or in a foreign country (see 35 U.S.C. 119(a)-(d) and (f), 365(a) and (b), and 386(a) and (b); see also 37 CFR 1.55).”
MPEP 213-Right of Priority of Foreign Application (5)
What is the significance of the Paris Convention in foreign priority claims?
The Paris Convention plays a crucial role in foreign priority claims for patent applications. Its significance includes:
- Establishing the right of priority for patent applications among member countries.
- Allowing applicants to file in multiple countries while maintaining the original filing date.
- Providing a 12-month priority period for utility patents (6 months for design patents).
- Ensuring equal treatment of foreign and domestic applicants in member countries.
According to MPEP 213: “The right of priority is defined in Article 4 of the Paris Convention for the Protection of Industrial Property and is based on the first filing in a Paris Convention country.” This convention facilitates international patent protection by allowing inventors to secure priority dates across multiple jurisdictions.
35 U.S.C. 386 establishes the right of priority for international design applications. It addresses two key scenarios:
- National applications claiming priority from international design applications
- International design applications claiming priority from prior foreign applications
The MPEP explains:
“Pursuant to 35 U.S.C. 386(a) and 37 CFR 1.55, a nonprovisional application may make a claim of foreign priority in accordance with the conditions and requirements of 35 U.S.C. 119(a)-(d) and 172 with respect to a prior international design application that designates at least one country other than the United States.”
“Pursuant to 35 U.S.C. 386(b) and 37 CFR 1.55, an international design application designating the United States may make a claim of foreign priority in accordance with the conditions and requirements of 35 U.S.C. 119(a)-(d) and 172 and the Hague Agreement and Regulations thereunder with respect to a prior foreign application, international application (PCT) designating at least one country other than the United States, or a prior international design application designating at least one country other than the United States.”
These provisions apply to applications filed on or after May 13, 2015, and patents issued from such applications.
The Paris Convention for the Protection of Industrial Property is an international agreement that establishes key principles for intellectual property protection, including patents. It was first signed in 1883 and has been revised several times since then.
The Convention is significant in patent law because it established the right of priority, which allows patent applicants to claim priority based on an earlier filing in any country that is a member of the Paris Convention. This right is referenced in MPEP 213, which states:
‘The right of priority is defined in 35 U.S.C. 119(a)… Under this statute, an applicant who has filed a first foreign application is entitled to claim the benefit of the filing date of the first foreign application in a subsequent U.S. national patent application…’
This provision helps inventors protect their inventions internationally by giving them a grace period to file in multiple countries while maintaining the priority date of their first filing.
The right of priority under 35 U.S.C. 386(a) and 386(b) applies to different types of applications. According to MPEP 213.07:
Pursuant to 35 U.S.C. 386(a) and 37 CFR 1.55, a nonprovisional application may make a claim of foreign priority in accordance with the conditions and requirements of 35 U.S.C. 119(a)-(d) and 172 with respect to a prior international design application that designates at least one country other than the United States.
This means that 35 U.S.C. 386(a) allows a nonprovisional application to claim priority based on a prior international design application.
On the other hand, 35 U.S.C. 386(b) applies differently:
Pursuant to 35 U.S.C. 386(b) and 37 CFR 1.55, an international design application designating the United States may make a claim of foreign priority in accordance with the conditions and requirements of 35 U.S.C. 119(a)-(d) and 172 and the Hague Agreement and Regulations thereunder with respect to a prior foreign application, international application (PCT) designating at least one country other than the United States, or a prior international design application designating at least one country other than the United States.
Thus, 35 U.S.C. 386(b) allows an international design application designating the United States to claim priority based on various types of prior applications.
The key differences are:
- 386(a) applies to nonprovisional applications claiming priority to international design applications.
- 386(b) applies to international design applications claiming priority to foreign applications, PCT applications, or other international design applications.
For more information on nonprovisional application, visit: nonprovisional application.
For more information on right of priority, visit: right of priority.
35 U.S.C. 365 addresses the right of priority for international applications in two key aspects:
- National applications based on international applications
- International applications based on foreign applications
The MPEP states:
“35 U.S.C. 365(a) provides that a national application shall be entitled to the right of priority based on a prior international application of whatever origin, which designated any country other than, or in addition to, the United States.”
“35 U.S.C. 365(b) provides that an international application designating the United States shall be entitled to the right of priority of a prior foreign application which may either be another international application or a regularly filed foreign application.”
These provisions ensure that applicants can claim priority based on international applications, enhancing the flexibility of the international patent system.
MPEP 216 - Entitlement to Priority (2)
The most important aspect of an examiner’s action regarding a right of priority is determining the identity of invention between the U.S. and foreign applications. This involves:
- Considering the foreign application as if it had been filed in the U.S. on the same date it was filed in the foreign country
- Examining the foreign application for sufficiency of disclosure under 35 U.S.C. 112
- Determining if there is a basis for the claims sought
The MPEP states: “The most important aspect of the examiner’s action pertaining to a right of priority is the determination of the identity of invention between the U.S. and the foreign applications. The foreign application may be considered in the same manner as if it had been filed in this country on the same date that it was filed in the foreign country, and the applicant is ordinarily entitled to any claims based on such foreign application that applicant would be entitled to under U.S. laws and practice.” (MPEP 216)
The terms ‘right of priority’ and ‘benefit of an earlier filing date’ refer to different concepts in US patent law:
- Right of priority: This term is used in the context of foreign priority under 35 U.S.C. 119(a)-(d) and 365(a) and (b). It allows a US application to claim the priority date of a foreign application filed within the previous 12 months.
- Benefit of an earlier filing date: This term is used for domestic benefit under 35 U.S.C. 119(e) and 120. It allows a US application to claim the filing date of an earlier US provisional or nonprovisional application.
As stated in MPEP 216: ‘The right of priority is a statutory right, which is not considered an application property right.’
For more information on domestic benefit, visit: domestic benefit.
For more information on foreign priority, visit: foreign priority.
For more information on right of priority, visit: right of priority.
Patent Law (10)
What is the significance of the Paris Convention in foreign priority claims?
The Paris Convention plays a crucial role in foreign priority claims for patent applications. Its significance includes:
- Establishing the right of priority for patent applications among member countries.
- Allowing applicants to file in multiple countries while maintaining the original filing date.
- Providing a 12-month priority period for utility patents (6 months for design patents).
- Ensuring equal treatment of foreign and domestic applicants in member countries.
According to MPEP 213: “The right of priority is defined in Article 4 of the Paris Convention for the Protection of Industrial Property and is based on the first filing in a Paris Convention country.” This convention facilitates international patent protection by allowing inventors to secure priority dates across multiple jurisdictions.
What is the significance of the ‘right of priority’ in international patent applications?
The ‘right of priority’ is a crucial concept in international patent applications. According to MPEP 211.01(c), ‘The right of priority is defined in 35 U.S.C. 119(a).’ This right allows applicants to claim priority from an earlier filed application, which can be beneficial in establishing the novelty and non-obviousness of an invention. Specifically, the MPEP states:
‘Under certain circumstances, the right of priority may be restored even if the filing is made after the 12-month priority period. See 37 CFR 1.55(c).’
This provision offers flexibility to applicants who may have missed the standard priority deadline, potentially preserving their patent rights in certain situations.
To learn more:
To learn more:
35 U.S.C. 386 establishes the right of priority for international design applications. It addresses two key scenarios:
- National applications claiming priority from international design applications
- International design applications claiming priority from prior foreign applications
The MPEP explains:
“Pursuant to 35 U.S.C. 386(a) and 37 CFR 1.55, a nonprovisional application may make a claim of foreign priority in accordance with the conditions and requirements of 35 U.S.C. 119(a)-(d) and 172 with respect to a prior international design application that designates at least one country other than the United States.”
“Pursuant to 35 U.S.C. 386(b) and 37 CFR 1.55, an international design application designating the United States may make a claim of foreign priority in accordance with the conditions and requirements of 35 U.S.C. 119(a)-(d) and 172 and the Hague Agreement and Regulations thereunder with respect to a prior foreign application, international application (PCT) designating at least one country other than the United States, or a prior international design application designating at least one country other than the United States.”
These provisions apply to applications filed on or after May 13, 2015, and patents issued from such applications.
The right of priority in international patent law refers to the right to rely on a foreign application when filing a patent application in another country. This concept originated in the Paris Convention for the Protection of Industrial Property, which the United States adhered to in 1887.
As stated in the MPEP: The right to rely on a foreign application is known as the right of priority in international patent law and this phrase has been adopted in the U.S. statute.
This right allows applicants to claim the filing date of an earlier foreign application, providing certain conditions are met.
To learn more:
The Paris Convention for the Protection of Industrial Property is an international agreement that establishes key principles for intellectual property protection, including patents. It was first signed in 1883 and has been revised several times since then.
The Convention is significant in patent law because it established the right of priority, which allows patent applicants to claim priority based on an earlier filing in any country that is a member of the Paris Convention. This right is referenced in MPEP 213, which states:
‘The right of priority is defined in 35 U.S.C. 119(a)… Under this statute, an applicant who has filed a first foreign application is entitled to claim the benefit of the filing date of the first foreign application in a subsequent U.S. national patent application…’
This provision helps inventors protect their inventions internationally by giving them a grace period to file in multiple countries while maintaining the priority date of their first filing.
The most important aspect of an examiner’s action regarding a right of priority is determining the identity of invention between the U.S. and foreign applications. This involves:
- Considering the foreign application as if it had been filed in the U.S. on the same date it was filed in the foreign country
- Examining the foreign application for sufficiency of disclosure under 35 U.S.C. 112
- Determining if there is a basis for the claims sought
The MPEP states: “The most important aspect of the examiner’s action pertaining to a right of priority is the determination of the identity of invention between the U.S. and the foreign applications. The foreign application may be considered in the same manner as if it had been filed in this country on the same date that it was filed in the foreign country, and the applicant is ordinarily entitled to any claims based on such foreign application that applicant would be entitled to under U.S. laws and practice.” (MPEP 216)
The terms ‘right of priority’ and ‘benefit of an earlier filing date’ refer to different concepts in US patent law:
- Right of priority: This term is used in the context of foreign priority under 35 U.S.C. 119(a)-(d) and 365(a) and (b). It allows a US application to claim the priority date of a foreign application filed within the previous 12 months.
- Benefit of an earlier filing date: This term is used for domestic benefit under 35 U.S.C. 119(e) and 120. It allows a US application to claim the filing date of an earlier US provisional or nonprovisional application.
As stated in MPEP 216: ‘The right of priority is a statutory right, which is not considered an application property right.’
For more information on domestic benefit, visit: domestic benefit.
For more information on foreign priority, visit: foreign priority.
For more information on right of priority, visit: right of priority.
Priority in patent applications refers to the ability of a later-filed application to claim the benefit of, or priority to, an earlier-filed application. This allows the later application to effectively have the filing date of the earlier application for certain purposes.
According to the MPEP, “Under certain conditions and on fulfilling certain requirements, a later-filed application for patent filed in the United States may claim the benefit of, or priority to, a prior application filed in the United States (see 35 U.S.C. 119(e), 120, 121, 365(c), and 386(c); see also 37 CFR 1.78) or in a foreign country (see 35 U.S.C. 119(a)-(d) and (f), 365(a) and (b), and 386(a) and (b); see also 37 CFR 1.55).”
The right of priority under 35 U.S.C. 386(a) and 386(b) applies to different types of applications. According to MPEP 213.07:
Pursuant to 35 U.S.C. 386(a) and 37 CFR 1.55, a nonprovisional application may make a claim of foreign priority in accordance with the conditions and requirements of 35 U.S.C. 119(a)-(d) and 172 with respect to a prior international design application that designates at least one country other than the United States.
This means that 35 U.S.C. 386(a) allows a nonprovisional application to claim priority based on a prior international design application.
On the other hand, 35 U.S.C. 386(b) applies differently:
Pursuant to 35 U.S.C. 386(b) and 37 CFR 1.55, an international design application designating the United States may make a claim of foreign priority in accordance with the conditions and requirements of 35 U.S.C. 119(a)-(d) and 172 and the Hague Agreement and Regulations thereunder with respect to a prior foreign application, international application (PCT) designating at least one country other than the United States, or a prior international design application designating at least one country other than the United States.
Thus, 35 U.S.C. 386(b) allows an international design application designating the United States to claim priority based on various types of prior applications.
The key differences are:
- 386(a) applies to nonprovisional applications claiming priority to international design applications.
- 386(b) applies to international design applications claiming priority to foreign applications, PCT applications, or other international design applications.
For more information on nonprovisional application, visit: nonprovisional application.
For more information on right of priority, visit: right of priority.
35 U.S.C. 365 addresses the right of priority for international applications in two key aspects:
- National applications based on international applications
- International applications based on foreign applications
The MPEP states:
“35 U.S.C. 365(a) provides that a national application shall be entitled to the right of priority based on a prior international application of whatever origin, which designated any country other than, or in addition to, the United States.”
“35 U.S.C. 365(b) provides that an international application designating the United States shall be entitled to the right of priority of a prior foreign application which may either be another international application or a regularly filed foreign application.”
These provisions ensure that applicants can claim priority based on international applications, enhancing the flexibility of the international patent system.
Patent Procedure (10)
What is the significance of the Paris Convention in foreign priority claims?
The Paris Convention plays a crucial role in foreign priority claims for patent applications. Its significance includes:
- Establishing the right of priority for patent applications among member countries.
- Allowing applicants to file in multiple countries while maintaining the original filing date.
- Providing a 12-month priority period for utility patents (6 months for design patents).
- Ensuring equal treatment of foreign and domestic applicants in member countries.
According to MPEP 213: “The right of priority is defined in Article 4 of the Paris Convention for the Protection of Industrial Property and is based on the first filing in a Paris Convention country.” This convention facilitates international patent protection by allowing inventors to secure priority dates across multiple jurisdictions.
What is the significance of the ‘right of priority’ in international patent applications?
The ‘right of priority’ is a crucial concept in international patent applications. According to MPEP 211.01(c), ‘The right of priority is defined in 35 U.S.C. 119(a).’ This right allows applicants to claim priority from an earlier filed application, which can be beneficial in establishing the novelty and non-obviousness of an invention. Specifically, the MPEP states:
‘Under certain circumstances, the right of priority may be restored even if the filing is made after the 12-month priority period. See 37 CFR 1.55(c).’
This provision offers flexibility to applicants who may have missed the standard priority deadline, potentially preserving their patent rights in certain situations.
To learn more:
To learn more:
35 U.S.C. 386 establishes the right of priority for international design applications. It addresses two key scenarios:
- National applications claiming priority from international design applications
- International design applications claiming priority from prior foreign applications
The MPEP explains:
“Pursuant to 35 U.S.C. 386(a) and 37 CFR 1.55, a nonprovisional application may make a claim of foreign priority in accordance with the conditions and requirements of 35 U.S.C. 119(a)-(d) and 172 with respect to a prior international design application that designates at least one country other than the United States.”
“Pursuant to 35 U.S.C. 386(b) and 37 CFR 1.55, an international design application designating the United States may make a claim of foreign priority in accordance with the conditions and requirements of 35 U.S.C. 119(a)-(d) and 172 and the Hague Agreement and Regulations thereunder with respect to a prior foreign application, international application (PCT) designating at least one country other than the United States, or a prior international design application designating at least one country other than the United States.”
These provisions apply to applications filed on or after May 13, 2015, and patents issued from such applications.
The right of priority in international patent law refers to the right to rely on a foreign application when filing a patent application in another country. This concept originated in the Paris Convention for the Protection of Industrial Property, which the United States adhered to in 1887.
As stated in the MPEP: The right to rely on a foreign application is known as the right of priority in international patent law and this phrase has been adopted in the U.S. statute.
This right allows applicants to claim the filing date of an earlier foreign application, providing certain conditions are met.
To learn more:
The Paris Convention for the Protection of Industrial Property is an international agreement that establishes key principles for intellectual property protection, including patents. It was first signed in 1883 and has been revised several times since then.
The Convention is significant in patent law because it established the right of priority, which allows patent applicants to claim priority based on an earlier filing in any country that is a member of the Paris Convention. This right is referenced in MPEP 213, which states:
‘The right of priority is defined in 35 U.S.C. 119(a)… Under this statute, an applicant who has filed a first foreign application is entitled to claim the benefit of the filing date of the first foreign application in a subsequent U.S. national patent application…’
This provision helps inventors protect their inventions internationally by giving them a grace period to file in multiple countries while maintaining the priority date of their first filing.
The most important aspect of an examiner’s action regarding a right of priority is determining the identity of invention between the U.S. and foreign applications. This involves:
- Considering the foreign application as if it had been filed in the U.S. on the same date it was filed in the foreign country
- Examining the foreign application for sufficiency of disclosure under 35 U.S.C. 112
- Determining if there is a basis for the claims sought
The MPEP states: “The most important aspect of the examiner’s action pertaining to a right of priority is the determination of the identity of invention between the U.S. and the foreign applications. The foreign application may be considered in the same manner as if it had been filed in this country on the same date that it was filed in the foreign country, and the applicant is ordinarily entitled to any claims based on such foreign application that applicant would be entitled to under U.S. laws and practice.” (MPEP 216)
The terms ‘right of priority’ and ‘benefit of an earlier filing date’ refer to different concepts in US patent law:
- Right of priority: This term is used in the context of foreign priority under 35 U.S.C. 119(a)-(d) and 365(a) and (b). It allows a US application to claim the priority date of a foreign application filed within the previous 12 months.
- Benefit of an earlier filing date: This term is used for domestic benefit under 35 U.S.C. 119(e) and 120. It allows a US application to claim the filing date of an earlier US provisional or nonprovisional application.
As stated in MPEP 216: ‘The right of priority is a statutory right, which is not considered an application property right.’
For more information on domestic benefit, visit: domestic benefit.
For more information on foreign priority, visit: foreign priority.
For more information on right of priority, visit: right of priority.
Priority in patent applications refers to the ability of a later-filed application to claim the benefit of, or priority to, an earlier-filed application. This allows the later application to effectively have the filing date of the earlier application for certain purposes.
According to the MPEP, “Under certain conditions and on fulfilling certain requirements, a later-filed application for patent filed in the United States may claim the benefit of, or priority to, a prior application filed in the United States (see 35 U.S.C. 119(e), 120, 121, 365(c), and 386(c); see also 37 CFR 1.78) or in a foreign country (see 35 U.S.C. 119(a)-(d) and (f), 365(a) and (b), and 386(a) and (b); see also 37 CFR 1.55).”
The right of priority under 35 U.S.C. 386(a) and 386(b) applies to different types of applications. According to MPEP 213.07:
Pursuant to 35 U.S.C. 386(a) and 37 CFR 1.55, a nonprovisional application may make a claim of foreign priority in accordance with the conditions and requirements of 35 U.S.C. 119(a)-(d) and 172 with respect to a prior international design application that designates at least one country other than the United States.
This means that 35 U.S.C. 386(a) allows a nonprovisional application to claim priority based on a prior international design application.
On the other hand, 35 U.S.C. 386(b) applies differently:
Pursuant to 35 U.S.C. 386(b) and 37 CFR 1.55, an international design application designating the United States may make a claim of foreign priority in accordance with the conditions and requirements of 35 U.S.C. 119(a)-(d) and 172 and the Hague Agreement and Regulations thereunder with respect to a prior foreign application, international application (PCT) designating at least one country other than the United States, or a prior international design application designating at least one country other than the United States.
Thus, 35 U.S.C. 386(b) allows an international design application designating the United States to claim priority based on various types of prior applications.
The key differences are:
- 386(a) applies to nonprovisional applications claiming priority to international design applications.
- 386(b) applies to international design applications claiming priority to foreign applications, PCT applications, or other international design applications.
For more information on nonprovisional application, visit: nonprovisional application.
For more information on right of priority, visit: right of priority.
35 U.S.C. 365 addresses the right of priority for international applications in two key aspects:
- National applications based on international applications
- International applications based on foreign applications
The MPEP states:
“35 U.S.C. 365(a) provides that a national application shall be entitled to the right of priority based on a prior international application of whatever origin, which designated any country other than, or in addition to, the United States.”
“35 U.S.C. 365(b) provides that an international application designating the United States shall be entitled to the right of priority of a prior foreign application which may either be another international application or a regularly filed foreign application.”
These provisions ensure that applicants can claim priority based on international applications, enhancing the flexibility of the international patent system.