What happens if a foreign application was filed more than 12 months before the U.S. application?

If a foreign application was filed more than 12 months before the U.S. application and priority has not been restored, the examiner will use form paragraph 2.23 to notify the applicant that the claim for priority cannot be based on that application.

As stated in the MPEP: Where the earlier foreign application was filed more than 12 months prior to the U.S. application and priority has not been restored under PCT Rule 26bis.3 for an international application or upon a granted petition under 37 CFR 1.55(c), use form paragraph 2.23.

In such cases, the applicant may file a petition under 37 CFR 1.55(c) to restore the right of priority if:

• The subsequent application was filed within two months from the expiration of the twelve-month period
• The delay was unintentional

The petition must include specific elements, such as the priority claim, petition fee, and a statement about the unintentional delay.

To learn more:

• foreign priority
• 12-month rule
• patent application
• USPTO procedure