How is the effective filing date determined for prior art purposes?
The effective filing date for prior art purposes is generally the earliest filing date to which the application is entitled. This can include provisional applications, foreign priority applications, and earlier-filed U.S. applications, provided they adequately support the claimed invention.
The MPEP notes: In determining the pre-AIA 35 U.S.C. 102(e) date, consider benefit claims to earlier-filed U.S. provisional applications under 35 U.S.C. 119(e), and to earlier-filed U.S. nonprovisional applications and international applications under 35 U.S.C. 120, 121, 365(c), or 386(c) if the subject matter used to make the rejection is appropriately supported in the relied upon earlier-filed application’s disclosure (and any intermediate application(s)).
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