How are provisional application filing dates considered under pre-AIA 35 U.S.C. 102(e)?

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.

The filing date of a provisional application can be critical for determining the prior art date under pre-AIA 35 U.S.C. 102(e), but specific conditions must be met. The MPEP states:

“Note that for benefit claims under 35 U.S.C. 119(e), the critical reference date under pre-AIA 35 U.S.C. 102(e) may be the filing date of a relied upon provisional application only if at least one of the claims in the reference patent, patent application publication, or international application publication is supported by the written description of the provisional application in compliance with pre-AIA 35 U.S.C. 112, first paragraph, or 35 U.S.C. 112(a).”

This means that to use the provisional application’s filing date as the prior art date under pre-AIA 35 U.S.C. 102(e), the claims in the reference must be fully supported by the provisional application’s written description.