What are the requirements for claiming benefit under 35 U.S.C. 120 in a design patent 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.

To claim benefit under 35 U.S.C. 120 in a design patent application, the following requirements must be met:

• The later-filed application must contain a reference to the prior-filed copending application.
• For applications filed on or after September 16, 2012, the specific reference must be in the application data sheet (37 CFR 1.76).
• For applications filed prior to September 16, 2012, the specific reference must be in the first sentence(s) of the specification or in an application data sheet.
• The prior-filed application must name the inventor or a joint inventor named in the later-filed application as the inventor or a joint inventor.
• The prior-filed application must be either a nonprovisional application, an international design application designating the United States, or an international application designating the United States.

As stated in the MPEP: “For a benefit claim under 35 U.S.C. 120, the later-filed application must contain a reference to the prior-filed copending application.” This reference is crucial for establishing the continuity between the applications.