What is the significance of the “effectively filed” date in 35 U.S.C. 102(a)(2)?

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.

The “effectively filed” date is crucial for determining whether a reference qualifies as prior art under 35 U.S.C. 102(a)(2). The MPEP explains:

“Even if the issue or publication date of the reference is not before the effective filing date of the claimed invention, the reference may still be applicable as prior art under 35 U.S.C. 102(a)(2) if it was ‘effectively filed’ before the effective filing date of the claimed invention with respect to the subject matter relied upon to reject the claim.”

Key points about the “effectively filed” date:

• It’s determined by 35 U.S.C. 102(d) for U.S. patents, U.S. patent application publications, and WIPO published applications
• It can be earlier than the actual filing date of the application
• It allows unpublished patent applications to potentially serve as prior art
• It’s crucial for determining the scope of prior art in the first-inventor-to-file system

Understanding the “effectively filed” date is essential for both patent examiners and applicants in assessing the relevance of potential prior art references.