What is the effective prior art date for WIPO publications of international applications?
The effective prior art date for WIPO publications of international applications depends on the specific subsection of 35 U.S.C. 102 being applied. According to MPEP 2127:
“A WIPO publication of an international application that designates but does not originate in the U.S. is effective as prior art under 35 U.S.C. 102(e) as of the date of publication of the corresponding U.S. application under 35 U.S.C. 122(b) or the earlier date of publication by WIPO of the international application under PCT Article 21(2)(a), if the international application includes a proper priority claim to an earlier filed U.S. application.”
This means that for 35 U.S.C. 102(e), the effective date is either the U.S. publication date or the earlier WIPO publication date, provided there’s a valid U.S. priority claim. However, under 35 U.S.C. 102(a), the WIPO publication date itself may serve as the prior art date.
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