Can a foreign priority date be used as the pre-AIA 35 U.S.C. 102(e) reference date?

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.

No, a foreign priority date cannot be used as the pre-AIA 35 U.S.C. 102(e) reference date. The MPEP clearly states:

“Foreign applications’ filing dates that are claimed (via 35 U.S.C. 119(a)–(d), (f) or 35 U.S.C. 365(a)) in applications, which have been published as U.S. or WIPO application publications or patented in the U.S., may not be used as pre-AIA 35 U.S.C. 102(e) dates for prior art purposes. This includes international filing dates claimed as foreign priority dates under 35 U.S.C. 365(a).”

However, it’s important to note that while the foreign priority date cannot be used as the pre-AIA 35 U.S.C. 102(e) reference date, it can still be relevant in other contexts. For example, an applicant may be able to overcome a pre-AIA 35 U.S.C. 102(e) rejection by proving they are entitled to a 35 U.S.C. 119 priority date that is earlier than the reference’s U.S. filing date.