How does AIA 35 U.S.C. 102(d) differ from the Hilmer doctrine?
AIA 35 U.S.C. 102(d) eliminates the Hilmer doctrine, which was applicable under pre-AIA law. The key differences are:
- Under the Hilmer doctrine, the effective filing date for U.S. patents as prior art was limited to their earliest U.S. filing date.
- Under AIA 35 U.S.C. 102(d), a U.S. patent document can have an effective filing date based on a foreign priority application.
The MPEP explains: “The AIA eliminates the so-called Hilmer doctrine. Under the Hilmer doctrine, pre-AIA 35 U.S.C. 102(e) limited the effective filing date for U.S. patents (and published applications) as prior art to their earliest U.S. filing date. In re Hilmer, 359 F.2d 859, 149 USPQ 480 (CCPA 1966). In contrast, AIA 35 U.S.C. 102(d) provides that if the U.S. patent document claims priority to one or more prior-filed foreign or international applications under 35 U.S.C. 119 or 365, the patent or published application was effectively filed on the filing date of the earliest such application that describes the subject matter.” This change allows for earlier effective filing dates based on foreign priority applications, potentially creating more prior art.
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