What are the consequences of improperly identifying a foreign priority application?
Improperly identifying a foreign priority application can have serious consequences for a patent applicant. According to MPEP 214.04:
‘Where the claim to priority in an application filed under 35 U.S.C. 111(a) is presented after the time period provided by 37 CFR 1.55(d) and without the required petition, or where the claim to priority is presented in a nonprovisional application filed under 35 U.S.C. 111(a) that was filed on or after March 16, 2013, and also claims the benefit under 35 U.S.C. 120, 121, 365(c), or 386(c) of a prior application that was filed prior to March 16, 2013, the examiner should reject under 35 U.S.C. 112(a) or pre-AIA 35 U.S.C. 112, first paragraph, any claims which are directed to subject matter that is not supported by the foreign application.’
Consequences may include:
- Rejection of claims under 35 U.S.C. 112(a) or pre-AIA 35 U.S.C. 112, first paragraph
- Loss of priority date for unsupported subject matter
- Potential issues with patentability due to intervening prior art
It’s crucial to accurately identify and properly claim foreign priority to avoid these issues.
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