How is copendency determined for international design applications claiming benefit under 35 U.S.C. 386(c)?
When determining copendency for an international design application designating the United States and claiming benefit under 35 U.S.C. 386(c), it’s the U.S. filing date of the international design application that is relevant, not necessarily the international filing date. The MPEP states:
In determining whether an international design application designating the United States is copending with a prior-filed application, it is the U.S. filing date of the international design application that is relevant, which may or may not be the same as the international filing date assigned by the International Bureau.
This distinction is crucial because if the international design application has an international filing date before, but a U.S. filing date after, the abandonment of the prior-filed application, the benefit claim would be refused due to lack of copendency under 35 U.S.C. 120.
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