How does the AIPA affect the critical reference date for continuations and divisionals?
The American Inventors Protection Act of 1999 (AIPA) has a significant impact on the critical reference date for continuations and divisionals. According to MPEP 2136.03:
“The AIPA amended 35 U.S.C. 102(e) to eliminate the reference to the date of invention. The critical reference date of a U.S. patent or patent application publication under pre-AIA 35 U.S.C. 102(e) is the earliest effective U.S. filing date.”
This means that for continuations and divisionals:
- The critical reference date is the filing date of the earliest U.S. application to which the patent or application is entitled to claim benefit under 35 U.S.C. 120, 121, 365(c), or 386(c).
- This date is used regardless of whether the earliest application actually contains the subject matter relied upon in the rejection.
To learn more:
Topics:
MPEP 2100 - Patentability,
MPEP 2136.03 - Critical Reference Date,
Patent Law,
Patent Procedure