How does AIA 35 U.S.C. 102(d) treat foreign priority applications for prior art purposes?
AIA 35 U.S.C. 102(d) allows the use of foreign priority application filing dates as the effective filing date for prior art purposes, which is a significant change from pre-AIA law. The MPEP states:
“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 means that if a U.S. patent document claims priority to a foreign application, and that foreign application describes the subject matter in question, the effective filing date for prior art purposes can be the filing date of the foreign application. This change potentially creates more prior art by allowing earlier effective filing dates based on foreign priority claims.
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