What does “effectively filed” mean under AIA 35 U.S.C. 102(d)?
AIA 35 U.S.C. 102(d) establishes criteria for determining when subject matter in a U.S. patent document was “effectively filed” for prior art purposes under AIA 35 U.S.C. 102(a)(2). A U.S. patent document is considered effectively filed as of:
- Its actual filing date (AIA 35 U.S.C. 102(d)(1)), or
- The filing date of a prior application to which there is a priority or benefit claim (AIA 35 U.S.C. 102(d)(2))
The MPEP clarifies: A U.S. patent document “is entitled to claim” priority to, or the benefit of, a prior-filed application if it fulfills the ministerial requirements of: (1) containing a priority or benefit claim to the prior-filed application; (2) being filed within the applicable filing period requirement (copending with or within twelve months of the earlier filing, as applicable); and (3) having a common inventor or being by the same applicant.
Importantly, the AIA distinguishes between being “entitled to claim” priority or benefit and actually being entitled to priority or benefit. For prior art purposes, only the ministerial requirements need to be met.
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