MPEP § 210 — MPEP § 210
Current through: 2022-07-01

210-Priority to, or the Benefit of, the Filing Date of a Prior-Filed Application 
 
 

 
 
 
 
 
 
 
 

 

 
 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 
 
 
 

 
 
 
 
 
 
 
 
 
 
 

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 Chapter 0200 

 Section 210 
 

 
 
 
 
 
 210 Priority to, or the Benefit of, the Filing Date of a
 Prior-Filed Application [R-08.2017]
 

 Under certain conditions and on fulfilling certain
 requirements, a later-filed application for patent filed in the United States may claim the
 benefit of, or priority to, a prior application filed in the United States (see
 35 U.S.C.
 119(e) , 120 , 121 ,
 365(c) , and 386(c) ; see also 37 CFR 1.78 ) or
 in a foreign country (see 35 U.S.C. 119(a)-(d) and (f) , 365(a) and (b) , and 386(a) and
 (b) ; see also 37 CFR 1.55 ). 
 

 As a result of recent changes to the applicable laws and
 rules, the procedural requirements and time frames for claiming priority to, or the benefit
 of, an earlier-filed application may vary based on the filing date of the later-filed
 nonprovisional application.
 

 Note that effective December 18, 2013, the Patent Law
 Treaties Implementation Act of 2012 (PLTIA) amended the patent laws to implement the
 provisions of the Patent Law Treaty (PLT) in title II; corresponding revisions to title 37
 of the Code of Federal Regulations also became effective on December 18, 2013. Notable
 changes to the law and rules included the restoration of the right of priority to a foreign
 application or the benefit of a provisional application in a subsequent application filed
 within two months of the expiration of the twelve-month period (six-month period for design
 applications) for filing such a subsequent application. In addition, title I of the PLTIA
 became effective May 13, 2015, along with corresponding revisions to the rules. Notable
 changes included the ability to file international design applications and to claim
 priority to, and the benefit of, international design applications in nonprovisional
 applications.
 

 I. REQUIREMENTS OF 37 CFR 1.78 (CLAIMING THE BENEFIT OF AN EARLIER NATIONAL
 APPLICATION) The following is an overview of the substantive changes to
 37 CFR
 1.78 resulting from implementation of Public Law 112-29, 125 Stat.
 284 (Leahy Smith America Invents Act (AIA)) and implementation of Public Law 112-211,
 126 Stat. 1527 (titles I and II of the Patent Law Treaties Implementation Act (PLTIA)).
 See MPEP §
 211 et seq. for the detailed requirements for claiming (and entitlement
 to), the benefit of an earlier-filed application under 35 U.S.C. 119(e) ,
 120 , 121 , 365(c) , or
 386(c) .
 

 Whether an application was filed before, on, or after March
 16, 2013, statutory provisions require that for a later-filed application to be entitled
 to the benefit of an earlier-filed national application, the later-filed application
 must contain a specific reference to the earlier-filed application. 35 U.S.C. 119(e) ,
 120 . 
 

 The inventor’s oath or declaration provisions of Public
 Law 112-29, sec. 4, 125 Stat. 284 (the Leahy-Smith America Invents Act) and the rules
 related thereto became effective September 16, 2012. In implementing these provisions
 the Office revised 37 CFR 1.78 to require that a benefit claim under
 35 U.S.C.
 119(e) , 120 , 121 , or
 365(c) must be in the application data sheet ( 37 CFR 1.76 ).
 Thus for all applications filed on or after September 16, 2012, the specific reference
 to the prior application must be in the application data sheet; for applications filed
 prior to September 16, 2012, the specific reference to the prior application must be in
 an application data sheet or in the first sentence(s) of the specification.
 

 In implementing the Patent Law Treaties Implementation Act
 (PLTIA), the Office reorganized and revised 37 CFR 1.78 effective May 13, 2015.
 All versions of 37
 CFR 1.78 in effect prior to May 13, 2015, have been consolidated
 in the current version of 37 CFR 1.78 . The following is a
 summary of the provisions of 37 CFR 1.78 .
 

 
 (A) 37 CFR
 1.78(a) contains provisions relating to claims under
 35 U.S.C.
 119(e) for the benefit of a prior-filed provisional
 application;
 

 (B) 37
 CFR 1.78(b) contains provisions relating to restoration of
 the right to claim the benefit of a provisional application under
 35 U.S.C.
 119(e) when the delay in filing the subsequent application
 was unintentional.
 

 (C) 37 CFR
 1.78(c) contains provisions relating to delayed claims under
 35 U.S.C.
 119(e) for the benefit of a prior-filed provisional
 application; 
 

 (D) 37 CFR
 1.78(d) contains provisions relating to claims under
 35 U.S.C.
 120 , 121 , 365(c) , or
 386(c) for the benefit of a prior-filed nonprovisional
 application, international application, or international design application; 
 

 (E) 37 CFR
 1.78(e) contains provisions relating to delayed claims under
 35 U.S.C.
 120 , 121 , 365(c) , or
 386(c) for the benefit of a prior-filed nonprovisional
 application, international application, or international design application;
 

 (F) 37 CFR
 1.78(f) contains provisions relating to applications
 containing patentably indistinct claims; 
 

 (G) 37 CFR
 1.78(g) contains provisions relating to applications or
 patents under reexamination naming different inventors and containing patentably
 indistinct claims; 
 

 (H) 37 CFR
 1.78(h) provides for situations where the specific reference
 to a prior filed application may be presented in the first sentence(s) of the
 specification in applications filed before September 16, 2012;
 

 (I) 37 CFR
 1.78(i) provides for situations where a petition under
 37 CFR 1.78(b) , (c) , or (e) 
 required in an international application can be filed in the earliest
 nonprovisional application that claims benefit under 35 U.S.C.
 120 , 121 , 365(c) , or
 386(c) to the international application;
 

 (J) 37 CFR
 1.78(j) provides that benefit under 35 U.S.C.
 386(c) with respect to an international design application
 can only be claimed in nonprovisional applications, international applications,
 and international design applications filed on or after May 13, 2015, and patents
 issuing thereon; and
 

 (K) 37 CFR
 1.78(k) provides that the time periods set forth in
 37 CFR
 1.78 are not extendable, but are subject to
 35 U.S.C.
 21(b) (and 37 CFR 1.7(a) ),
 PCT Rule
 80.5 , and Hague Agreement Rule 4(4).
 

 
 37 CFR
 1.78(a)(6) and (d)(6) set forth provisions that are
 only applicable to nonprovisional applications filed on or after March 16, 2013 that
 claim the benefit of the filing date of a provisional or nonprovisional application
 filed prior to March 16, 2013. Specifically, the paragraphs require that if the later
 filed application contains, or contained at any time, a claim to a claimed invention
 that has an effective filing date on or after March 16, 2013, the applicant must provide
 a statement to that effect within the time periods set forth in the rule. An applicant
 is not required to provide such a statement if the applicant reasonably believes on the
 basis of information already known to the individuals designated in 37 CFR 1.56(c) 
 that the later filed nonprovisional application does not, and did not at any time,
 contain a claim to a claimed invention that has an effective filing date on or after
 March 16, 2013. An applicant is also not required to provide such a statement if the
 application claims the benefit of an earlier application in which a statement that the
 earlier application contains, or contained at any time, a claim to a claimed invention
 that has an effective filing date on or after March 16, 2013 has been filed. See
 MPEP §
 211.01 for additional information.
 

 II. REQUIREMENTS OF 37 CFR 1.55 (CLAIMING PRIORITY TO AN EARLIER FOREIGN
 APPLICATION) The following is an overview of the substantive changes to
 37 CFR
 1.55 resulting from implementation of Public Law 112-29, 125 Stat.
 284 (Leahy Smith America Invents Act (AIA)) and implementation of Public Law 112-211,
 126 Stat. 1527 (titles I and title II of the Patent Law Treaties Implementation Act
 (PLTIA)). See MPEP § 213 et seq. for the detailed requirements for claiming (and entitlement
 to), priority to of an earlier filed foreign application under 35 U.S.C.
 119(a) - (d) or (f) ,
 35 U.S.C.
 365(a) or (b) , or 386(a) 
 or (b) .
 

 Whether an application was filed before, on, or after March
 16, 2013, 35 U.S.C.
 119(b)(1) requires a claim for priority identifying the foreign
 application. Prior to September 16, 2012, 37 CFR 1.55 and 1.63 required
 the claim for priority to be identified on an application data sheet or in the oath or
 declaration.
 

 The inventor’s oath or declaration provisions of Public
 Law 112-29, sec. 4, 125 Stat. 284 (the Leahy-Smith America Invents Act) and the rules
 related thereto became effective September 16, 2012. In implementing these provisions
 the Office revised 37 CFR 1.55 to require that a claim for foreign priority must be
 presented in the application data sheet ( 37 CFR 1.76 ). Thus for all
 applications filed on or after September 16, 2012, a claim for priority under
 35 U.S.C.
 119(a) - (d) or (f) ,
 365(a) or (b) , or 386(a) 
 or (b) to the prior application must be presented in the application
 data sheet; for applications filed prior to September 16, 2012, the claim for priority
 to the foreign application must be identified in an application data sheet or in the
 oath or declaration.
 

 In implementing the Patent Law Treaties Implementation Act
 (PLTIA), the Office reorganized and revised 37 CFR 1.55 effective May 13, 2015.
 All versions of 37
 CFR 1.55 in effect prior to May 13, 2015, have been consolidated
 in the current version of 37 CFR 1.55 . The following is a
 summary of the provisions of 37 CFR 1.55 .
 

 
 (A) 37 CFR 1.55(a) provides
 generally that a nonprovisional application may claim priority to one or more
 prior foreign applications under the conditions specified in 35 U.S.C. 119(a) through (d)
 and (f) , 172 , 365(a) and
 (b) , and 386(a) and (b) ; 
 

 (B) 37 CFR 1.55(b) contains
 provisions relating to the time for filing a nonprovisional application claiming
 priority to a foreign application under 35 U.S.C. 119(a) through (d) and
 (f) , 172 , 365(a) and
 (b) , and 386(a) and (b) ; 
 

 (C) 37 CFR 1.55(c) contains
 provisions relating to the restoration of the right of priority
 under 35
 U.S.C. 119(a) through (d) and (f) , 172 ,
 365(a) and
 (b) , and 386(a) and (b) ; 
 

 (D) 37 CFR 1.55(d) contains
 provisions relating to the time for filing a priority claim in an application
 filed under 35 U.S.C. 111(a) and in an
 application entering the national stage under 35 U.S.C. 371 ; 
 

 (E) 37 CFR 1.55(e) contains
 provisions relating to delayed claims for priority under 35 U.S.C. 119(a) through (d)
 and (f) , 365(a) or (b) , and
 386(a) or (b) ; 
 

 (F) 37 CFR 1.55(f) contains
 provisions relating to the time for filing the certified copy of a foreign
 application in an application filed under 35 U.S.C.
 111(a) and in an application entering the national stage
 under 35 U.S.C.
 371 ; 
 

 (G) 37 CFR 1.55(g) contains
 provisions relating to the filing of a priority claim, certified copy of the
 foreign application, and translation of a non-English language foreign application
 in any application; 
 

 (H) 37 CFR 1.55(h) contains
 provisions relating to when the requirement for a certified copy will be
 considered satisfied based on a certified copy filed in another U.S. patent or
 application; 
 

 (I) 37 CFR 1.55(i) contains
 provisions relating to the priority document exchange agreement; 
 

 (J) 37 CFR 1.55(j) contains
 provisions relating to the filing of an interim copy of a foreign application;
 
 

 (K) 37 CFR 1.55(k) contains
 provisions relating to requirements for certain applications filed on or after
 March 16, 2013; 
 

 (L) 37 CFR 1.55(l) contains
 provisions relating to inventor's certificates; and 
 

 (M) 37 CFR 1.55(m) contains
 provisions relating to the time for the filing of a priority claim and certified
 copy of the foreign application in an international design application designating
 the United States; 
 

 (N) 37 CFR 1.55(n) provides for
 situations where a foreign priority claim may be presented in the oath or
 declaration in applications filed before September 16, 2012; 
 

 (O) 37 CFR 1.55(o) provides that
 right of priority under 35 U.S.C. 386(a) or
 (b) with respect to an international design application is
 applicable only to nonprovisional applications, international applications, and
 international design applications filed on or after May 13, 2015, and patents
 issuing thereon; and 
 

 (P) 37 CFR 1.55(p) provides that
 the time periods set forth in 37 CFR 1.55 are not
 extendable, but are subject to 35 U.S.C. 21(b) (and
 37
 CFR 1.7(a) ), PCT Rule 80.5 , and Hague
 Agreement Rule 4(4). 
 

 III. REQUIREMENT FOR A STATEMENT UNDER 37 CFR 1.55 OR 1.78 FOR FIRST INVENTOR TO FILE
 TRANSITION APPLICATIONS The first inventor to file provisions of Public Law
 112-29, sec. 3, 125 Stat. 284 (the Leahy-Smith America Invents Act) and the rules
 related thereto became effective March 16, 2013. These provisions apply to any
 application for patent, and to any patent issuing thereon, that contains or contained at
 any time— 
 

 
 (A) a claim to a claimed invention that has an effective
 filing date as defined under section 100(i) of title 35,
 United States Code, that is on or after March 16, 2013; or 
 

 (B) a specific reference under section 120 ,
 121 , or 365(c) of title 35, United
 States Code, to any patent or application that contains or contained at any time
 such a claim. See 35 U.S.C. 100 (note) 

 
 As a result, the effective filing date of each claimed
 invention determines whether an application is subject to examination under
 35 U.S.C.
 102 and 103 as effective on March 16, 2013
 or under 35 U.S.C.
 102 and 103 in effect on March 15, 2013
 (i.e., pre-AIA 35
 U.S.C. 102 or 103 ).
 

 Title I of the PLTIA amended the definition of effective
 filing date in 35 U.S.C. 100(i) to provide for
 priority claims under 35 U.S.C. 386(a) or
 (b) and benefit claims under 35 U.S.C.
 386(c) .
 

 The effective filing date for a claimed invention in a
 patent or application (except in an application for reissue or reissued patent) is set
 forth in 35
 U.S.C. 100(i)(1) as:
 

 
 (A) if subparagraph (B) does not apply, the actual filing
 date of the patent or the application for the patent containing a claim to the
 invention; or
 

 (B) the filing date of the earliest application for
 which the patent or application is entitled, as to such invention, to a right of
 priority under section 119 , 365(a) ,
 365(b) , 386(a) , or 386(b) or to the benefit of an earlier filing date under
 section 120 , 121 , 365(c) , or
 386(c) . 
 

 
 For an application for reissue or a reissued patent, the
 effective filing date for a claimed invention, as set forth in 35 U.S.C.
 100(i)(2) , is determined by deeming the claim to the invention to
 have been contained in the patent for which reissue was sought.
 

 In implementing the first inventor to file provision of the
 AIA, the Office added a statement requirement to 37 CFR 1.55 and 1.78 for
 transition applications. See 37 CFR 1.55(k) and 1.78(a)(6) and
 (d)(6) . Note that the statement requirement for transition
 applications does not apply to nonprovisional international design applications.
 

 A. Transition Applications Transition applications are nonprovisional applications
 that: 
 

 
 (A) are filed on or after March 16, 2013; and 

 (B) claim foreign priority to, or domestic benefit of,
 an application filed before March 16, 2013. 
 

 
 Transition applications are either pre-AIA
 first-to-invent applications or AIA first-inventor-to-file applications depending on
 the effective filing date of the claimed invention(s).
 

 The statement provisions of 37 CFR 1.55 
 and 1.78 require that if the later-filed transition application
 contains, or contained at any time, a claim to a claimed invention that has an
 effective filing date on or after March 16, 2013, the applicant must provide a
 statement to that effect (unless the later-filed application is a nonprovisional
 international design application). The statement must be provided within the later of
 four months from the actual filing date of the later-filed application, four months
 from the date of entry into the national stage as set forth in 37 CFR
 1.491 in an international application, sixteen months from the
 filing date of the prior-filed application, or the date that a first claim to a
 claimed invention that has an effective filing date on or after March 16, 2013, is
 presented in the later-filed application. Nonprovisional international design
 applications are excluded from the transition provisions of 37 CFR
 1.55(k) and 1.78(a)(6) and (d)(6) .
 

 For a nonprovisional application filed on or after March
 16, 2013 that claims priority to, or the benefit of, the filing date of an earlier
 filed application, the applicant would not be required to provide any
 statement if:
 

 
 (A) The nonprovisional application discloses only
 subject matter also disclosed in a priority or domestic benefit application
 filed prior to March 16, 2013; or 
 

 (B) the nonprovisional application claims only
 priority to, or the benefit of, the filing date of an application filed on or
 after March 16, 2013. 
 

 
 An applicant is not required to provide such a statement
 under 37 CFR
 1.78 in a continuing transition application if the application
 claims the benefit of a nonprovisional application in which such a statement under
 37 CFR
 1.55 or 1.78 has been filed. See
 37 CFR
 1.78(d)(6)(i) .
 

 An applicant is not required to provide such a
 statement under 37 CFR 1.55 or 1.78 if the applicant reasonably
 believes on the basis of information already known to the individuals designated in
 37 CFR
 1.56(c) that the later-filed transition application does not,
 and did not at any time, contain a claim to a claimed invention that has an effective
 filing date on or after March 16, 2013.
 

 Applicant is not required to identify how many or which
 claims in the transition application have an effective filing date on or after March
 16, 2013, or identify the subject matter in the transition application not also
 disclosed in the priority or benefit application. Applicant is only required to state
 that there is a claim in the transition application that has an effective filing date
 on or after March 16, 2013. The Office may issue a requirement for information under
 37 CFR
 1.105 if an applicant takes conflicting positions on whether an
 application contains, or contained at any time, a claim to a claimed invention having
 an effective filing date on or after March 16, 2013. For example, the Office may
 require the applicant to identify where there is written description support under
 35
 U.S.C. 112(a) in the pre-AIA application for each claim to a
 claimed invention if an applicant provides the statement under 37 CFR
 1.78(a)(6) , but later argues that the application should have
 been examined as a pre-AIA application because the application does not actually
 contain a claim to a claimed invention having an effective filing date on or after
 March 16, 2013.
 

 B. Application Data Sheet and Filing Receipt The application data sheet (ADS, Form PTO/AIA/14) and
 the transmittal letter for 35 U.S.C. 371 national stage
 filing (Form PTO- 1390) are available for an applicant to make the 37 CFR
 1.55 / 1.78 statement by marking a check
 box on the forms. The presence or absence of the 37 CFR
 1.55 / 1.78 statement is reflected on
 the filing receipt. If applicant receives a filing receipt with incorrect information
 regarding the 37 CFR 1.55 / 1.78 statement, applicant may
 request a corrected filing receipt. Therefore, applicants should carefully and
 promptly review their filing receipts in order to ensure that their applications will
 be examined under the correct statutory framework.
 

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 201-Types of Applications 
 201.01-National Applications 

 201.02-General Terms Used to Describe Applications 

 201.03-[Reserved] 

 201.04-Provisional Application 

 201.05-Reissue Application 

 201.06-Divisional Application 
 201.06(a)-Former 37 CFR 1.60 Divisional Continuation Procedure 

 201.06(b)-Former 37 CFR 1.62 File Wrapper Continuing Procedure 

 201.06(c)-37 CFR 1.53(b) and 37 CFR 1.63(d) Divisional-Continuation Procedure 

 201.06(d)-37 CFR 1.53(d) Continued Prosecution Application (CPA) Practice 

 
 

 201.07-Continuation Application 

 201.08-Continuation-in-Part Application 

 
 

 202-Cross-Noting 

 203-Status of Applications 
 203.01-New 

 203.02-Rejected 

 203.03-Amended 

 203.04-Allowed or in Issue 

 203.05-Abandoned 

 203.06-Incomplete 

 203.07-[Reserved] 

 203.08-Status Inquiries 
 203.08(a)-Congressional and Other Official Inquiries 

 
 

 
 

 204‑209-[Reserved] 

 210-Priority to, or the Benefit of, the Filing Date of a Prior-Filed Application 

 211-Claiming the Benefit of an Earlier Filing Date Under 35 U.S.C. 120 and 119(e) 
 211.01-Requirements Related to the Prior-Filed Application 
 211.01(a)-Claiming the Benefit of a Provisional Application 

 211.01(b)-Claiming the Benefit of a Nonprovisional Application 

 211.01(c)-Claiming the Benefit of an International Application Designating the United States 

 211.01(d)-Claiming the Benefit of an International Design Application Designating the United States 

 
 

 211.02-Reference to Prior Application(s) 
 211.02(a)-Correcting or Adding a Benefit Claim After Filing 

 
 

 211.03-Time Period for Making a Claim for Benefit Under 37 CFR 1.78 

 211.04-Delayed Benefit Claims 

 211.05-Sufficiency of Disclosure in Prior-Filed Application 

 
 

 212-[Reserved] 

 213-Right of Priority of Foreign Application 
 213.01-Recognized Countries and Regional Patent Offices of Foreign Filing 

 213.02-Formal Requirements Relating to Foreign Priority Application 

 213.03-Time for Filing U.S. Nonprovisional Application 

 213.04-Requirement to File Priority Claim and Certified Copy During Pendency of Application 

 213.05-Right of Priority Based Upon an Application for an Inventor’s Certificate 

 213.06-Claiming Priority and Filing a Certified Copy in a National Stage Application (35 U.S.C. 371) 

 213.07-Claiming Priority and Filing a Certified Copy in a Nonprovisional International Design Application 

 
 

 214-Formal Requirements of Claim for Foreign Priority 
 214.01-Time for Filing Priority Claim 

 214.02-Unintentionally Delayed Priority Claims 

 214.03-Office Acknowledgement of Priority Claims 

 214.04-Proper Identification of Priority Application in Foreign Priority Claim 

 
 

 215-Certified Copy of Foreign Application 
 215.01-Electronic Priority Document Exchange 

 215.02-Time For Filing Certified Copy – Application Filed On or After March 16, 2013 
 215.02(a)-Timeliness Requirement – Met By Priority Document Exchange 

 215.02(b)-Timeliness Requirement – Met By Interim Copy of Foreign Application 

 
 

 215.03-Time For Filing Certified Copy – Application Filed Before March 16, 2013 

 
 

 216-Entitlement to Priority 
 216.01-Perfecting Claim for Priority Under 35 U.S.C. 119(a)-(d) or (f) After Issuance of a Patent 

 
 

 217-Incorporation by Reference Under 37 CFR 1.57(b) 

 

 

 
 

 
 
 

 
 

 

 
 
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