How does a provisional application affect the critical reference date 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.

A provisional application can affect the critical reference date under pre-AIA 35 U.S.C. 102(e) if certain conditions are met. The MPEP states:

“The critical reference date under pre-AIA 35 U.S.C. 102(e) of a U.S. patent, a U.S. patent application publication, as well as an international application publication having prior art effect 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).”

For a provisional application’s filing date to be used as the critical reference date:

• At least one claim in the reference must be supported by the provisional application’s written description
• The subject matter relied upon in the reference must be described in the provisional application in compliance with pre-AIA 35 U.S.C. 112, first paragraph, or 35 U.S.C. 112(a)

If these conditions are met, the filing date of the provisional application can be used as the critical reference date under pre-AIA 35 U.S.C. 102(e), potentially making the reference available as prior art earlier than its actual filing or publication date.