What is the difference between claiming benefit under 35 U.S.C. 119(e) and 35 U.S.C. 120?
The main differences between claiming benefit under 35 U.S.C. 119(e) and 35 U.S.C. 120 are:
- 35 U.S.C. 119(e):
- Used for claiming benefit of a provisional application
- Does not require specifying the relationship between applications
- Example: “This application claims the benefit of U.S. Provisional Application No. 61/123,456, filed January 1, 2020.”
- 35 U.S.C. 120:
- Used for claiming benefit of a nonprovisional application
- Requires specifying the relationship (continuation, divisional, or continuation-in-part)
- Example: “This application is a continuation of U.S. Application No. 12/345,678, filed January 1, 2020.”
MPEP 211.02 advises: “Although 35 U.S.C. 120 does not preclude a benefit claim to a provisional application, it is not recommended that applicants claim the benefit to a provisional application under 35 U.S.C. 120 since such a claim could have the effect of reducing the patent term, as the term of a patent issuing from such an application may be measured from the filing date of the provisional application pursuant to 35 U.S.C. 154(a)(2).”
It’s important to use the correct statute when making benefit claims to ensure proper recognition and avoid potential issues with patent term calculations.
To learn more:
Topics:
MPEP 200 - Types and Status of Application; Benefit and Priority,
Patent Law,
Patent Procedure