How does the filing date of a U.S. parent application affect the pre-AIA 35 U.S.C. 102(e) date in a continuing application?

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 U.S. parent application can be used as the pre-AIA 35 U.S.C. 102(e) date in a continuing application, but only if certain conditions are met. The MPEP states:

“For prior art purposes, a U.S. patent or patent application publication that claims the benefit of an earlier filing date under 35 U.S.C. 120 of a prior nonprovisional application (i.e., a continuation, divisional, or continuation-in-part application) would be accorded the earlier filing date as its prior art date under pre-AIA 35 U.S.C. 102(e), provided the earlier-filed application properly supports the subject matter relied upon in any rejection in compliance with 35 U.S.C. 112(a) or pre-AIA 35 U.S.C. 112, first paragraph.”

Key points to remember:

• The continuing application must properly claim the benefit of the earlier filing date under 35 U.S.C. 120.
• The subject matter used in the rejection must be disclosed in the earlier-filed application in compliance with 35 U.S.C. 112(a) or pre-AIA 35 U.S.C. 112, first paragraph.
• If these conditions are met, the filing date of the parent application can be used as the pre-AIA 35 U.S.C. 102(e) date for prior art purposes.

This provision allows for the earlier filing date of a parent application to be used in determining the prior art effect of a continuing application, potentially making it available as prior art earlier than its actual filing date.