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Flowcharts for 35 U.S.C. § 102(e) Dates


Textual Equivalent of
PDF entitled "FLOWCHARTS FOR 35 U.S.C. § 102(e) DATES"

Chart I: For U.S. patent or US patent application publication under
35 U.S.C. §122(b) (includes publications of § 371 applications)

Review Glossary

Q1. Is the reference a US patent or US application publication of an International Application (IA)? Look for "35 U.S.C. § 371" on the reference, which would indicate National Stage was entered.

If Q1 is no: Goto Q2 . Back Q1

If Q1 is yes: § 371 (international application entered the National Stage). Goto Q3a . Back Q1

Q2. Is there an international application in the continuity chain for which a benefit is properly sought via §§ 120 or 365(c)? Back Q1

If Q2 is no: No International Application involved. The reference was filed under § 111(a) and only claims benefit to other US applications filed under § 111(a) or (b) or does not make any benefit claims. The § 102(e) date of the reference is the earliest US filing date for which a benefit is properly sought via §§ 119(e) and/or 120 (do not consider foreign priority claims under §§ 119(a)-(d)). Form Paragraph 7.12

If Q2 is yes: there is a benefit claim to an international application (§§ 120 or 365(c)). Goto Q3b . Back Q2


Q3a. Was the international application filed on or after Nov. 29, 2000? Look at the international filing date.

If Q3a. is yes: Goto Q4a . Back Q3a.

If Q3a is no: For a patent: § 102(e) date is the § 371(c)(1), (2) and (4) date. Form Paragraph 7.12.01. For a US application publication: no § 102(e) date
Reference is prior art as of its publication date under § 102(a) or (b). Form Paragraph 7.08 or 7.09.

Q3b. Was the international application filed on or after Nov. 29, 2000? Look at the international filing date.

If Q3b. Is yes: Goto Q4b . Back Q3b.

If Q3b is no: For a patent: § 102(e) date is the § 371(c)(1), (2) and (4) date; or § 111(a) filing date if the international application never entered national stage. Form Paragraph 7.12.01
For a US application publication: § 102(e) date is the filing date of the US application that claimed benefit to the international application. Form Paragraph 7.12

Q4a. Was the WIPO publication of the international application in English and did the international application designate the US (both conditions must be true)?

If Q4a is yes: For a patent and a US application publication: § 102(e) date is the international filing date or an earlier filing date for which a benefit is properly sought. Consider benefit claims properly made under § 119(e) to US provisional applications, § 120 to US nonprovisional applications, and § 365(c) involving International Applications. Do NOT consider foreign priority claims. Form Paragraph 7.12

If Q4a is no: For a patent and a US application publication based directly from a § 371 application: no § 102(e) date. The reference is prior art as of its publication or grant date under § 102(a) or (b). Form Paragraph 7.08 or 7.09.

Q4b. Was the WIPO publication of the international application in English and did the international application designate the US (both conditions must be true)?

If Q4b is yes: For a patent and a US application publication: § 102(e) date is the international filing date or an earlier filing date for which a benefit is properly sought. Consider benefit claims properly made under § 119(e) to US provisional applications, § 120 to US nonprovisional applications, and § 365(c) involving International Applications. Do NOT consider foreign priority claims. Form Paragraph 7.12

If Q4b is no: For a patent and a US application publication based on a §111(a) application claiming benefit to the earlier filed international application: the § 102(e) date is the filing date of the US application that claimed benefit to the international application. Paragraph 7.12.

Continue to Chart II: For WIPO publication of International Applications (IAs)

Back to Chart I. Back Q4a or Back Q4b

Chart II: For WIPO publication of International Applications (IAs)

Q5. Was the international application filed on or after Nov. 29, 2000? Look at the international filing date.

If Q5 is yes: Goto Q6 . Back Q5.

If Q5 is no: no § 102(e) date
Reference is prior art as of its publication date under § 102(a) or (b) no matter what the language of publication was. Form Paragraph 7.08 or 7.09

Q6. Was the WIPO publication of the international application in English and did the international application designate the US?

If Q6 is yes: § 102(e) date is the international filing date or an earlier filing date for which a benefit is properly sought. Consider benefit claims properly made under § 119(e) to US provisional applications, § 120 to US nonprovisional applications, and § 365(c) involving international applications. Do NOT consider foreign priority claims. Form Paragraph 7.12.

If Q6 is no: no § 102(e) date. Reference is prior art as of its publication date under § 102(a) or (b) no matter what the language of publication was. Form Paragraph 7.08 or 7.09.

Back Q1 (applies to patents and US application publications).

Back Q5 (applies to WIPO publications).

Glossary of Terms

US patent application publication = pre-grant publication by the USPTO under 35 U.S.C. § 122(b)
International application ( IA ) = an application filed under the Patent Cooperation Treaty (PCT)
§ 371 application = an international application that has entered the national stage in the US (35 U.S.C. § 371(c)(1), (2) and (4))
November 29, 2000 = the effective date for the amendments to §§ 102(e) and 374
WIPO = World Intellectual Property Organization
WIPO Publication = a publication of an international application under PCT Article 21(2) (e.g., Publication No. WO 99/12345)
§ 111(a) = provision of the patent code that states the filing requirements for nonprovisional applications
§ 111(b) = provision of the patent code that states the filing requirements for provisional applications
§ 119(e) = provision of the patent code that allows for priority claims to provisional applications
§ 119(a)-(d) = provision of the patent code that allows for priority claims to foreign applications
§ 120 = provision of the patent code that allows for benefit claims to nonprovisional applications
§ 365(c) = provision of the patent code that allows for benefit claims to international applications.

Back Q1 (applies to patents and US application publications) or Back Q5 (applies to WIPO publications). Return to Top

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Last Modified: 7/4/2009 6:18:08 PM