Can the filing date of a foreign priority document be used as the effective filing date under pre-AIA 35 U.S.C. 102?

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, the filing date of a foreign priority document cannot be used as the effective filing date under pre-AIA 35 U.S.C. 102. However, it can be used to overcome certain references. The MPEP states:

“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.” (MPEP 2139.01)

For more information on using foreign priority dates to overcome references, you can refer to MPEP § 2136.05.