35 USC 102(e) – “A person shall be entitled to a patent unless (e) the invention was described in — (1) an application for patent, published under section 122(b), by another filed in the United States before the invention by the applicant for patent or (2) a patent granted on an application for patent by another filed in the United States before the invention by the applicant for patent, except that an international application filed under the treaty defined in section 351(a) shall have the effects for the purposes of this subsection of an application filed in the United States only if the international application designated the United States and was published under Article 21(2) of such treaty in the English language;”
New AIPA: Disclosure in Earlier Filed Applications (effective November 29, 2000) – A person shall be entitled to an invention unless (e) the invention was described in (not necessarily claimed)
1) An application for a patent, published under §122(b), by another filed in the US before the invention by the applicant, except that the international application filed under the treaty … shall have the effect under this subsection of a national application published … only if the international application designating the US was published … of such treaty in English; or
2) A patent granted on an application for patent by another filed in the US before the invention thereof by the applicant for patent, except that a patent shall not be deemed filed in the US for the purposes of this subsection based on the filing of an international application filed under the treaty defined in section 351(a)
US Patents can claim the benefit of an IA prior art date and have the IA filing date if:
- IA was filed on or after 11/29/00; the IA designated the US; and published in English
- US Application Publications – is prior art of the application’s US effective filing date, which can include an IA filing date, if it meets above 3 conditions
