Can an application be filed by reference to a previously filed application?
Yes, a nonprovisional application can be filed by reference to a previously filed application under certain conditions:
- The application must be filed on or after December 18, 2013
- A reference to the previously filed application must be made in an application data sheet
- The reference must indicate that the specification and any drawings of the new application are replaced by the reference
- The reference must specify the previously filed application by application number, filing date, and intellectual property authority
The USPTO states: As provided in 35 U.S.C. 111(c), a nonprovisional application filed under 35 U.S.C. 111(a) on or after December 18, 2013, may be filed by a reference to a previously filed application (foreign, international, provisional, or nonprovisional) indicating that the specification and any drawings of the application are replaced by the reference to the previously filed application.
However, the USPTO cautions: Accordingly, to avoid the risk of incorrect filings and the required surcharge, applicants should simply file a copy of the specification and drawings of the previously filed application, if available, instead of relying upon the reference filing provisions.
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