Does AIA 35 U.S.C. 102(d) require evaluation of actual entitlement to priority or benefit?
No, AIA 35 U.S.C. 102(d) does not require evaluation of actual entitlement to priority or benefit when determining the effective filing date for prior art purposes. The MPEP clearly states:
“As a result of this distinction, the question of whether a patent or published application is actually entitled to priority or benefit with respect to any of its claims is not at issue in determining the date the patent or published application was “effectively filed” for prior art purposes. Thus, there is no need to evaluate whether any claim of a U.S. patent document is actually entitled to priority or benefit under 35 U.S.C. 119, 120, 121, 365, or 386 when applying such a document as prior art.“
This means that as long as the ministerial requirements for claiming priority or benefit are met, the earlier filing date can be used as the effective filing date for prior art purposes under AIA 35 U.S.C. 102(d), regardless of whether the claims are actually entitled to that earlier date.
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