MPEP § 213 — MPEP § 213
Current through: 2022-07-01

213-Right of Priority of Foreign Application 
 
 

 
 
 
 
 
 
 
 

 

 
 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 
 
 
 

 
 
 
 
 
 
 
 
 
 
 

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 Manual of Patent Examining Procedure 

 Chapter 0200 

 Section 213 
 

 
 
 
 
 
 213 Right of Priority of Foreign Application [R-08.2017]

 Under certain conditions and on fulfilling certain
 requirements, an application for patent filed in the United States may be entitled to the
 benefit of the filing date of a prior application filed in a foreign country. The
 conditions are specified in 35 U.S.C. 119(a) - (d) and
 (f) , 172 , 365(a) and
 (b) , and 386(a) and (b) , and
 37 CFR
 1.55 .
 

 
 35 U.S.C. 119 
 Benefit of earlier filing date; right of
 priority. 

 
 (a) An application for patent for an invention filed in
 this country by any person who has, or whose legal representatives or assigns
 have, previously regularly filed an application for a patent for the same
 invention in a foreign country which affords similar privileges in the case of
 applications filed in the United States or to citizens of the United States, or in
 a WTO member country, shall have the same effect as the same application would
 have if filed in this country on the date on which the application for patent for
 the same invention was first filed in such foreign country, if the application in
 this country is filed within 12 months from the earliest date on which such
 foreign application was filed. The Director may prescribe regulations, including
 the requirement for payment of the fee specified in section 41(a)(7) ,
 pursuant to which the 12-month period set forth in this subsection may be extended
 by an additional 2 months if the delay in filing the application in this country
 within the 12-month period was unintentional.
 

 
 
 (b)
 
 (1) No application for patent shall be entitled to
 this right of priority unless a claim is filed in the Patent and Trademark
 Office, identifying the foreign application by specifying the application
 number on that foreign application, the intellectual property authority or
 country in or for which the application was filed, and the date of filing
 the application, at such time during the pendency of the application as
 required by the Director.
 

 (2) The Director may consider the failure of the
 applicant to file a timely claim for priority as a waiver of any such claim.
 The Director may establish procedures, including the requirement for payment
 of the fee specified in section 41(a)(7) , to accept an
 unintentionally delayed claim under this section.
 

 (3) The Director may require a certified copy of
 the original foreign application, specification, and drawings upon which it
 is based, a translation if not in the English language, and such other
 information as the Director considers necessary. Any such certification
 shall be made by the foreign intellectual property authority in which the
 foreign application was filed and show the date of the application and of
 the filing of the specification and other papers. 
 

 
 

 (c) In like manner and subject to the same conditions
 and requirements, the right provided in this section may be based upon a
 subsequent regularly filed application in the same foreign country instead of the
 first filed foreign application, provided that any foreign application filed prior
 to such subsequent application has been withdrawn, abandoned, or otherwise
 disposed of, without having been laid open to public inspection and without
 leaving any rights outstanding, and has not served, nor thereafter shall serve, as
 a basis for claiming a right of priority.
 

 (d) Applications for inventors’ certificates filed in a
 foreign country in which applicants have a right to apply, at their discretion,
 either for a patent or for an inventor’s certificate shall be treated in this
 country in the same manner and have the same effect for purpose of the right of
 priority under this section as applications for patents, subject to the same
 conditions and requirements of this section as apply to applications for patents,
 provided such applicants are entitled to the benefits of the Stockholm Revision of
 the Paris Convention at the time of such filing.
 

 
 *****

 
 (f) Applications for plant breeder’s rights filed in a
 WTO member country (or in a foreign UPOV Contracting Party) shall have the same
 effect for the purpose of the right of priority under subsections (a) through (c)
 of this section as applications for patents, subject to the same conditions and
 requirements of this section as apply to applications for patents. 
 

 
 *****

 

 
 37 CFR 1.55 Claim for foreign priority. 

 
 (a) In general. An applicant in 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) and this
 section.
 

 (b) Time for filing subsequent application. The nonprovisional
 application must be:
 
 (1) Filed not later than twelve months (six
 months in the case of a design application) after the date on which the
 foreign application was filed, subject to paragraph (c) of this section (a
 subsequent application); or 
 

 (2) Entitled to claim the benefit under
 35
 U.S.C. 120 , 121 , 365(c) , or 386(c) of a subsequent
 application that was filed within the period set forth in paragraph (b)(1)
 of this section.
 

 
 

 (c) Delayed filing of subsequent application. If the subsequent
 application has a filing date which is after the expiration of the period set
 forth in paragraph (b)(1) of this section, but within two months from the
 expiration of the period set forth in paragraph (b)(1) of this section, the right
 of priority in the subsequent application may be restored under PCT Rule
 26bis.3 for an international
 application, or upon petition pursuant to this paragraph, if the delay in filing
 the subsequent application within the period set forth in paragraph (b)(1) of this
 section was unintentional. A petition to restore the right of priority under this
 paragraph filed on or after May 13, 2015, must be filed in the subsequent
 application, or in the earliest nonprovisional application claiming benefit under
 35 U.S.C.
 120 , 121 , 365(c) , or
 386(c) to the subsequent application, if such subsequent
 application is not a nonprovisional application. Any petition to restore the right
 of priority under this paragraph must include: 
 
 (1) The priority claim under 35 U.S.C.
 119(a) through (d) or (f) ,
 365(a)
 or (b) , or 386(a) or
 (b) in an application data sheet (§ 1.76(b)(6) ), identifying the foreign application to
 which priority is claimed, by specifying the application number, country (or
 intellectual property authority), day, month, and year of its filing, unless
 previously submitted;
 

 (2) The petition fee as set forth in §
 1.17(m) ; and
 

 (3) A statement that the delay in filing the
 subsequent application within the period set forth in paragraph (b)(1) of
 this section was unintentional. The Director may require additional
 information where there is a question whether the delay was unintentional.
 
 

 
 

 (d) Time for filing priority claim— 
 (1) Application under 35 U.S.C.
 111(a) . The claim for priority must be filed
 within the later of four months from the actual filing date of the
 application or sixteen months from the filing date of the prior foreign
 application in an original application filed under 35 U.S.C.
 111(a) , except as provided in paragraph (e) of this
 section. The claim for priority must be presented in an application data
 sheet (§ 1.76(b)(6) ) and must
 identify the foreign application to which priority is claimed by specifying
 the application number, country (or intellectual property authority), day,
 month, and year of its filing. The time periods in this paragraph do not
 apply if the later-filed application is:
 
 (i) An application for a design patent;
 or
 

 (ii) An application filed under
 35 U.S.C. 111(a) 
 before November 29, 2000.
 

 
 

 (2) Application under 35 U.S.C.
 371 . The claim for priority must be made
 within the time limit set forth in the PCT and the Regulations under the PCT
 in an international application entering the national stage under
 35
 U.S.C. 371 , except as provided in paragraph (e) of
 this section. 
 

 
 

 (e) Delayed priority claim. Unless such claim is accepted in
 accordance with the provisions of this paragraph, any claim for priority under
 35 U.S.C.
 119(a) through (d) or (f) ,
 365(a) or
 (b) , or 386(a) or 386(b) not presented
 in the manner required by paragraph (d) or (m) of this section during pendency and
 within the time period provided by paragraph (d) of this section (if applicable)
 is considered to have been waived. If a claim for priority is considered to have
 been waived under this section, the claim may be accepted if the priority claim
 was unintentionally delayed. A petition to accept a delayed claim for priority
 under 35 U.S.C.
 119(a) through (d) or (f) ,
 365(a) or (b) , or 386(a) or 386(b) must be accompanied
 by:
 
 (1) The priority claim under 35 U.S.C.
 119(a) through (d) or (f) ,
 365(a) or 386(b) , or
 386(a) or
 (b) in an application
 data sheet (§ 1.76(b)(6) ), identifying
 the foreign application to which priority is claimed, by specifying the
 application number, country (or intellectual property authority), day,
 month, and year of its filing, unless previously submitted;
 

 (2) A certified copy of the foreign application,
 unless previously submitted or an exception in paragraph (h), (i), or (j) of
 this section applies;
 

 (3) The petition fee as set forth in §
 1.17(m) ; and
 

 (4) A statement that the entire delay between
 the date the priority claim was due under this section and the date the
 priority claim was filed was unintentional. The Director may require
 additional information where there is a question whether the delay was
 unintentional.
 

 
 

 (f) Time for filing certified copy of foreign application— 
 (1) Application under 35 U.S.C.
 111(a) . A certified copy of the foreign
 application must be filed within the later of four months from the actual
 filing date of the application, or sixteen months from the filing date of
 the prior foreign application, in an original application under
 35 U.S.C. 111(a) filed on or after March 16, 2013,
 except as provided in paragraphs (h), (i), and (j) of this section. The time
 period in this paragraph does not apply in a design application.
 

 (2) Application under 35 U.S.C.
 371 . A certified copy of the foreign
 application must be filed within the time limit set forth in the PCT and the
 Regulations under the PCT in an international application entering the
 national stage under 35 U.S.C. 371 . If a
 certified copy of the foreign application is not filed during the
 international stage in an international application in which the national
 stage commenced on or after December 18, 2013, a certified copy of the
 foreign application must be filed within the later of four months from the
 date on which the national stage commenced under 35 U.S.C.
 371(b) or (f) (§ 1.491(a) ), four months from the date of the initial
 submission under 35 U.S.C. 371 to enter
 the national stage, or sixteen months from the filing date of the prior
 foreign application, except as provided in paragraphs (h), (i), and (j) of
 this section.
 

 (3) If a certified copy of the foreign
 application is not filed within the time period specified [in] paragraph
 (f)(1) of this section in an application under 35 U.S.C.
 111(a) or within the period specified in paragraph
 (f)(2) of this section in an international application entering the national
 stage under 35 U.S.C. 371 , and an
 exception in paragraph (h), (i), or (j) of this section is not applicable,
 the certified copy of the foreign application must be accompanied by a
 petition including a showing of good and sufficient cause for the delay and
 the petition fee set forth in § 1.17(g) .
 

 
 

 (g) Requirement for filing priority claim, certified copy of foreign
 application, and translation in any application. 
 (1) The claim for priority and the certified
 copy of the foreign application specified in 35 U.S.C.
 119(b) or PCT Rule 17 must, in any
 event, be filed within the pendency of the application, unless filed with a
 petition under paragraph (e) or (f) of this section, or with a petition
 accompanied by the fee set forth in § 1.17(g) which includes a showing of good and
 sufficient cause for the delay in filing the certified copy of the foreign
 application in a design application. If the claim for priority or the
 certified copy of the foreign application is filed after the date the issue
 fee is paid, the patent will not include the priority claim unless corrected
 by a certificate of correction under 35 U.S.C. 255 and §
 1.323 .
 

 (2) The Office may require that the claim for
 priority and the certified copy of the foreign application be filed earlier
 than otherwise provided in this section:
 
 (i) When the application is involved in an
 interference (see § 41.202 of this
 chapter) or derivation (see part 42 of this chapter) proceeding;
 

 (ii) When necessary to overcome the date of
 a reference relied upon by the examiner; or
 

 (iii) When deemed necessary by the
 examiner.
 

 
 

 (3) An English language translation of a
 non-English language foreign application is not required except:
 
 (i) When the application is involved in an
 interference (see § 41.202 of this
 chapter) or derivation (see part 42 of this chapter) proceeding;
 

 (ii) When necessary to overcome the date of
 a reference relied upon by the examiner; or
 

 (iii) When specifically required by the
 examiner.
 

 
 

 (4) If an English language translation of a
 non-English language foreign application is required, it must be filed
 together with a statement that the translation of the certified copy is
 accurate.
 

 
 

 (h) Certified copy in another U.S. patent or application. The
 requirement in paragraphs (f) and (g) of this section for a certified copy of the
 foreign application will be considered satisfied in a reissue application if the
 patent for which reissue is sought satisfies the requirement of this section for a
 certified copy of the foreign application and such patent is identified as
 containing a certified copy of the foreign application. The requirement in
 paragraphs (f) and (g) of this section for a certified copy of the foreign
 application will also be considered satisfied in an application if a prior-filed
 nonprovisional application for which a benefit is claimed under 35 U.S.C.
 120 , 121 , 365(c) , or
 386(c) contains a certified copy of the foreign application
 and such prior-filed nonprovisional application is identified as containing a
 certified copy of the foreign application. 
 

 (i) Foreign intellectual property office participating in a priority document
 exchange agreement. The requirement in paragraphs (f) and (g) of this
 section for a certified copy of the foreign application to be filed within the
 time limit set forth therein will be considered satisfied if:
 
 (1) The foreign application was filed in a
 foreign intellectual property office participating with the Office in a
 bilateral or multilateral priority document exchange agreement
 (participating foreign intellectual property office), or a copy of the
 foreign application was filed in an application subsequently filed in a
 participating foreign intellectual property office that permits the Office
 to obtain such a copy;
 

 (2) The claim for priority is presented in an
 application data sheet (§ 1.76(b)(6) ), identifying
 the foreign application for which priority is claimed, by specifying the
 application number, country (or intellectual property authority), day,
 month, and year of its filing, and the applicant provides the information
 necessary for the participating foreign intellectual property office to
 provide the Office with access to the foreign application;
 

 (3) The copy of the foreign application is
 received by the Office from the participating foreign intellectual property
 office, or a certified copy of the foreign application is filed, within the
 period specified in paragraph (g)(1) of this section; and
 

 (4) The applicant files in a separate document a
 request that the Office obtain a copy of the foreign application from a
 participating intellectual property office that permits the Office to obtain
 such a copy where, although the foreign application was not filed in a
 participating foreign intellectual property office, a copy of the foreign
 application was filed in an application subsequently filed in a
 participating foreign intellectual property office that permits the Office
 to obtain such a copy. The request must identify the participating
 intellectual property office and the subsequent application by the
 application number, day, month, and year of its filing in which a copy of
 the foreign application was filed. The request must be filed within the
 later of sixteen months from the filing date of the prior foreign
 application, four months from the actual filing date of an application under
 35 U.S.C. 111(a) , four months from the date on which
 the national stage commenced under 35 U.S.C. 371(b) or
 (f) (§ 1.491(a) ), or four
 months from the date of the initial submission under 35 U.S.C.
 371 to enter the national stage, or the request must
 be accompanied by a petition under paragraph (e) or (f) of this section.
 

 
 

 (j) Interim copy. The requirement in paragraph (f) of this section
 for a certified copy of the foreign application to be filed within the time limit
 set forth therein will be considered satisfied if:
 
 (1) A copy of the original foreign application
 clearly labeled as "Interim Copy," including the specification, and any
 drawings or claims upon which it is based, is filed in the Office together
 with a separate cover sheet identifying the foreign application by
 specifying the application number, country (or intellectual property
 authority), day, month, and year of its filing, and stating that the copy
 filed in the Office is a true copy of the original application as filed in
 the foreign country (or intellectual property authority);
 

 (2) The copy of the foreign application and
 separate cover sheet are filed within the later of sixteen months from the
 filing date of the prior foreign application, four months from the actual
 filing date of an application under 35 U.S.C.
 111(a) , four months from the date on which the
 national stage commenced under 35 U.S.C. 371(b) or
 (f) (§ 1.491(a) ), four months
 from the date of the initial submission under 35 U.S.C.
 371 to enter the national stage, or with a petition
 under paragraph (e) or (f) of this section; and
 

 (3) A certified copy of the foreign application
 is filed within the period specified in paragraph (g)(1) of this
 section.
 

 
 

 (k) Requirements for certain applications filed on or after March 16,
 2013. If a nonprovisional application filed on or after March 16,
 2013, other than a nonprovisional international design application, claims
 priority to a foreign application filed prior to March 16, 2013, and also
 contains, or contained at any time, a claim to a claimed invention that has an
 effective filing date as defined in § 1.109 that is on or after
 March 16, 2013, the applicant must provide a statement to that effect within the
 later of four months from the actual filing date of the nonprovisional
 application, four months from the date of entry into the national stage as set
 forth in § 1.491 in an international application, sixteen months from
 the filing date of the prior foreign 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 nonprovisional application. 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 § 1.56(c) 
 that the 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.
 

 (l) Inventor's certificates. An applicant in a nonprovisional
 application may under certain circumstances claim priority on the basis of one or
 more applications for an inventor's certificate in a country granting both
 inventor's certificates and patents. To claim the right of priority on the basis
 of an application for an inventor's certificate in such a country under
 35 U.S.C.
 119(d) , the applicant, when submitting a claim for such
 right as specified in this section, must include an affidavit or declaration. The
 affidavit or declaration must include a specific statement that, upon an
 investigation, he or she is satisfied that to the best of his or her knowledge,
 the applicant, when filing the application for the inventor’s certificate, had the
 option to file an application for either a patent or an inventor’s certificate as
 to the subject matter of the identified claim or claims forming the basis for the
 claim of priority.
 

 (m) Time for filing priority claim and certified copy of foreign application
 in an international design application designating the United States. 
 In an international design application designating the United States, the claim
 for priority may be made in accordance with the Hague Agreement and the Hague
 Agreement Regulations. In a nonprovisional international design application, the
 priority claim, unless made in accordance with the Hague Agreement and the Hague
 Agreement Regulations, must be presented in an application data sheet (§
 1.76(b)(6) ), identifying the foreign application for which
 priority is claimed, by specifying the application number, country (or
 intellectual property authority), day, month, and year of its filing. In a
 nonprovisional international design application, the priority claim and certified
 copy must be furnished in accordance with the time period and other conditions set
 forth in paragraph (g) of this section.
 

 (n) Applications filed before September 16, 2012. Notwithstanding
 the requirement in paragraphs (d)(1), (e)(1), and (i)(2) of this section that any
 priority claim be presented in an application data sheet (§ 1.76 ),
 this requirement in paragraphs (d)(1), (e)(1), and (i)(2) of this section will be
 satisfied by the presentation of such priority claim in the oath or declaration
 under § 1.63 in a nonprovisional application filed under
 35
 U.S.C. 111(a) before September 16, 2012, or resulting from
 an international application filed under 35 U.S.C. 363 before September
 16, 2012. The provisions of this paragraph do not apply to any priority claim
 submitted for a petition under paragraph (c) of this section to restore the right
 of priority to a foreign application.
 

 (o) Priority under 35 U.S.C. 386(a) or
 (b) . The 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.
 

 (p) Time periods in this section. The time periods set forth in
 this section are not extendable, but are subject to 35 U.S.C.
 21(b) (and § 1.7(a) ), PCT Rule
 80.5 , and Hague Agreement Rule 4(4).
 

 
 

 Implementation of Public Law 112-211, 126 Stat. 1527 (titles I
 and title II of the Patent Law Treaties Implementation Act (PLTIA)), necessitated changes
 to the procedural requirements relating to claims for priority to an earlier-filed foreign
 application and to the submission of a certified copy of the priority document. The
 conditions for claiming priority to an earlier-filed foreign application are summarized
 below:
 

 
 (A) The foreign application must be one filed in “a foreign
 country which affords similar privileges in the case of applications filed in the
 United States or to citizens of the United States or in a WTO member country.” See
 MPEP §
 213.01 .
 

 (B) The foreign application must have been filed by the same
 applicant as the applicant in the United States, or by applicant's legal
 representatives or assigns. Consistent with longstanding Office policy, this is
 interpreted to mean that the U.S. and foreign applications must name the same
 inventor or have at least one joint inventor in common. See MPEP §
 213.02 .
 

 (C) The application, or its earliest parent United States
 application under 35 U.S.C. 120 , must have been
 filed in a “recognized” country (see MPEP §
 213.01 ) within 12 months from the date of the earliest
 foreign filing unless the right of priority has been restored (see
 MPEP §
 213.03 ). However, the period of 12 months specified in this
 section is 6 months in the case of designs pursuant to 35 U.S.C.
 172 . See MPEP §§ 1504.10 and
 2920.05(d) .
 

 (D) The foreign application must be for the same invention
 as the application in the United States.
 

 (E) For an original application filed under
 35 U.S.C.
 111(a) (other than a design application), the claim for
 priority must be presented during the pendency of the application, and within the
 later of four months from the actual filing date of the application or sixteen months
 from the filing date of the prior foreign application. This time period is not
 extendable. See MPEP § 214.01 . 
 

 (F) For applications entering the national stage under
 35 U.S.C.
 371 from an international application, the claim for priority
 must be made and a certified copy of the foreign application must be filed within the
 time limit set forth in the PCT Articles and Regulations.
 

 (G) For a nonprovisional international design application,
 the priority claim, unless made in accordance with the Hague Agreement and the Hague
 Agreement Regulations, must be presented in an application data sheet during the
 pendency of the application. See 37 CFR 1.55(m) . In addition, the
 right of priority under 35 U.S.C. 386(a) or
 (b) with respect to an international design application can
 only be claimed in a nonprovisional, international, or international design
 application filed on or after May 13, 2015. See 37 CFR
 1.55(o) .
 

 (H) In the case where the basis of the claim is an
 application for an inventor's certificate, the requirements of 37 CFR
 1.55(l) must also be met. See MPEP §
 213.05 .
 

 (I) A certified copy of the foreign application must be
 filed within the time period set forth in 37 CFR 1.55 . See
 MPEP §
 215.02 et seq. for applications filed on or after March 16, 2013, and
 MPEP §
 215.03 for applications filed before March 16, 2013. The
 claim for priority and the certified copy of the foreign application must, in any
 event, be filed within the pendency of the application and before the patent is
 granted. See MPEP § 213.04 .
 

 (J) If a nonprovisional application (other than a
 nonprovisional international design application) filed on or after March 16, 2013,
 claims priority to a foreign application filed prior to March 16, 2013, and also
 contains, or contained at any time, a claim to a claimed invention that has an
 effective filing date (as defined in 35 U.S.C. 100(i) ) on or after
 March 16, 2013, the applicant must provide a statement to that effect within a
 specified time period. See 37 CFR 1.55(k) and
 MPEP §
 210 , subsection III.
 

 
 Applicant may be informed of possible priority rights under
 35 U.S.C.
 119(a) - (d) and (f) by using the
 wording of form paragraph 2.18 .
 

 ¶ 2.18 Right of Priority Under 35 U.S.C. 119(a)-(d) and (f) 

 Applicant is advised of possible benefits under 35 U.S.C.
 119(a) - (d) and (f) , wherein an
 application for patent filed in the United States may be entitled to claim priority to an
 application filed in a foreign country.
 

 

 
 213.01 Recognized Countries and Regional Patent Offices
 of Foreign Filing [R-10.2019]
 

 The right to rely on a foreign application is known as the
 right of priority in international patent law and this phrase has been adopted in the
 U.S. statute. The right of priority originated in a multilateral treaty of 1883, to
 which the United States adhered in 1887, known as the Paris Convention for the
 Protection of Industrial Property (Paris Convention). The treaty is administered by the
 World Intellectual Property Organization (WIPO) at Geneva, Switzerland. This treaty has
 been revised several times, the latest revision in effect being written in Stockholm in
 July 1967 (copy at Appendix P of this Manual). Articles 13-30 of the Stockholm Revision
 became effective on September 5, 1970. Articles 1-12 of the Stockholm Revision became
 effective on August 25, 1973. One of the many provisions of the Paris Convention
 requires each of the adhering countries to accord the right of priority to the nationals
 of the other countries and the first United States statute relating to this subject was
 enacted to carry out this obligation. A foreign country may also provide for this right
 by reciprocal legislation.
 

 I. LIST OF RECOGNIZED COUNTRIES Following is a table of states, i.e., countries, with
 respect to which the right of priority referred to in 35 U.S.C.
 119(a) - (d) has been recognized. The
 table indicates whether a basis for priority is that the state is party to the
 Patent
 Cooperation Treaty (PCT) or the Paris Convention for the
 Protection of Industrial Property (Paris), or a member of the
 World Trade Organization (WTO). See 35 U.S.C. 119(a) . See
 www.wipo.int/pct/en/paris_wto_pct.html for the most current
 version of the table reproduced below. See also www.wto.org/english/thewto_e/ whatis_e/tif_e/ org6_e.htm for a
 current list of WTO member countries along with their dates of membership.
 Applications for plant breeder’s rights filed in WTO member countries and foreign
 UPOV contracting parties may be relied upon for priority pursuant to
 35 U.S.C.
 119(f) . See MPEP §§ 1612 and
 1613 . 
 

 

 

 

 Note that the United States and Taiwan signed an
 agreement on priority for patent and trademark applications on April 10, 1996, and as
 of that date Taiwan is a country for which the right of priority is recognized in the
 United States. Taiwan became a member of the WTO on January 1, 2002.
 

 If any applicant asserts the benefit of the filing date
 of an application filed in a country not on this list, the examiner should contact
 the Office of Policy and International Affairs to determine if there has been any
 change in the status of that country. It should be noted that the right is based on
 the country of the foreign filing and not upon the citizenship of
 the applicant.
 

 II. RIGHT OF PRIORITY BASED UPON AN INTERNATIONAL APPLICATION FILED UNDER THE
 PATENT COOPERATION TREATY 
 35 U.S.C. 365 
 Right of priority; benefit of the filing
 date of a prior application. 

 
 (a) In accordance with the conditions and
 requirements of subsections (a) through (d) of section
 119 , a national application shall be entitled to the
 right of priority based on a prior filed international application which
 designated at least one country other than the United States.
 

 (b) In accordance with the conditions and
 requirements of section 119(a) and the
 treaty and the Regulations, an international application designating the
 United States shall be entitled to the right of priority based on a prior
 foreign application, or a prior international application designating at
 least one country other than the United States. The Director may establish
 procedures, including the requirement for payment of the fee specified in
 section 41(a)(7) , to accept an unintentionally delayed claim
 for priority under the treaty and the Regulations, and to accept a priority
 claim that pertains to an application that was not filed within the priority
 period specified in the treaty and Regulations, but was filed within the
 additional 2-month period specified under section 119(a) 
 or the treaty and Regulations.
 

 
 *****

 

 35 U.S.C.
 365(a) provides that a national application shall be entitled
 to the right of priority based on a prior international application of whatever
 origin, which designated any country other than, or in addition to, the United
 States. Of course, the conditions prescribed by 35 U.S.C.
 119(a) - (d) , which deals with the right
 of priority based on earlier filed foreign applications, must be complied with.
 

 35 U.S.C.
 365(b) provides that an international application designating
 the United States shall be entitled to the right of priority of a prior foreign
 application which may either be another international application or a regularly
 filed foreign application. The international application upon which the claim of
 priority is based can either have been filed in the United States or a foreign
 country; however, it must contain the designation of at least one country other than,
 or in addition to, the United States.
 

 As far as the actual place of filing is concerned, for
 the purpose of 35
 U.S.C. 365(a) and (b) and 35 U.S.C.
 119(a) - (d) and (f) , an
 international application designating a country is considered to be a national
 application regularly filed in that country on the international filing date
 irrespective of whether it was physically filed in that country, in another country,
 or in an intergovernmental organization acting as Receiving Office for a country.
 

 III. RIGHT OF PRIORITY BASED UPON AN INTERNATIONAL DESIGN APPLICATION 
 35 U.S.C. 386 
 Right of priority. 

 
 (a) NATIONAL APPLICATION.—In accordance with the
 conditions and requirements of subsections (a) 
 through (d) of section 119 and
 section 172 , a national application shall be entitled
 to the right of priority based on a prior international design application
 that designated at least 1 country other than the United States.
 

 (b) PRIOR FOREIGN APPLICATION.—In accordance with
 the conditions and requirements of subsections (a) 
 through (d) of section 119 and
 section 172 and the treaty and the Regulations, an
 international design application designating the United States shall be
 entitled to the right of priority based on a prior foreign application, a
 prior international application as defined in section
 351(c) designating at least 1 country other than the
 United States, or a prior international design application designating at
 least 1 country other than the United States.
 

 
 *****

 

 Pursuant to 35 U.S.C.
 386(a) and 37 CFR 1.55 , a nonprovisional
 application may make a claim of foreign priority in accordance with the conditions
 and requirements of 35 U.S.C. 119(a) - (d) and 172 with
 respect to a prior international design application that designates at least one
 country other than the United States. Pursuant to 35 U.S.C.
 386(b) and 37 CFR 1.55 , an international
 design application designating the United States may make a claim of foreign priority
 in accordance with the conditions and requirements of 35 U.S.C.
 119(a) - (d) and 172 and the
 Hague Agreement and Regulations thereunder with respect to a prior foreign
 application, international application (PCT) designating at least one country other
 than the United States, or a prior international design application designating at
 least one country other than the United States. The provisions of 35 U.S.C.
 386(a) and (b) apply to nonprovisional
 applications, international applications (PCT) and international design applications
 filed on or after May 13, 2015, and patents issued therefrom. See 37 CFR
 1.55(o) and MPEP §§
 213 et seq. and 1504.10 .
 

 See MPEP §
 2920.05(d) for additional information pertaining to the
 right of priority based upon an international design application.
 

 IV. RIGHT OF PRIORITY (35 U.S.C. 119(a)-(d), 365(a)-(b), AND 386(a)-(b)) BASED ON
 A FOREIGN APPLICATION FILED UNDER A BILATERAL OR MULTILATERAL TREATY Under Article 4A of the Paris Convention for the
 Protection of Industrial Property, a right of priority may be based on an application
 for a patent or for the registration of a utility model or an industrial design filed
 under the national law of a foreign country adhering to the Convention, or on a
 foreign application filed under a bilateral or multilateral treaty concluded between
 two or more such countries. Examples of such treaties pertaining to the protection of
 designs are The Hague Agreement Concerning the International Registration of
 Industrial Designs, the Benelux Designs Convention, and the Office for Harmonization
 in the Internal Market (OHIM) as created under European Union law. Treaties
 pertaining to utility and/or plant patents include The Convention on the Grant of
 European Patents (which established the European Patent Office), the Patent
 Cooperation Treaty, and the International Convention for the Protection of New
 Varieties of Plants (UPOV).
 

 In addition to the list of recognized countries set
 forth in subsection I, above, applicants may claim priority under 35 U.S.C.
 119(a) - (d) to applications filed in
 foreign regional patent offices having member states who are members of the Paris
 Convention. These include the African Regional Intellectual Property Organization
 (ARIPO), the Eurasian Patent Office (EAPO), the European Patent Office (EPO), the
 Gulf Cooperation Council (GCC) Patent Office, and the African Intellectual Property
 Organization (known under the acronym OAPI for its French name, Organisation
 Africaine de la Propriété Intellectuelle ). 
 

 

 
 213.02 Formal Requirements Relating to Foreign Priority
 Application [R-07.2022]
 
 I. IDENTIFICATION OF FOREIGN APPLICATION For original applications filed under 35 U.S.C.
 111(a) , the claim for foreign priority must identify the
 foreign application for which priority is claimed by specifying the application
 number, country (or intellectual property authority), day, month, and year of its
 filing. For international applications entering the national stage as to the Unites
 States, see MPEP § 213.06 . For international
 design applications designating the United States, see MPEP §
 2920.05(d) .
 

 For applications filed under 35 U.S.C.
 111(a) on or after September 16, 2012, the claim for priority
 must be presented in an application data sheet. See 37 CFR
 1.55(d)(1) . Providing this information in the application data
 sheet constitutes the claim for priority as required by 35 U.S.C.
 119(b) and 37 CFR 1.55 . In an international
 application entering the national stage under 35 U.S.C. 371 , the claim for
 priority must be made within the time limit set forth in the PCT and the Regulations
 under the PCT. See 37 CFR 1.55(d)(2) . Note that it
 is permissible, but not required, to present the claim for priority in an application
 data sheet in an international application entering the national stage under
 35 U.S.C.
 371 . For international design applications designating the
 United States, the claim for priority must be presented in an application data sheet
 unless the priority claim was made in accordance with the Hague Agreement and the
 Hague Agreement Regulations. See 37 CFR 1.55(m) . 
 

 For applications filed prior to September 16, 2012, the
 claim to priority need be in no special form, and may be made by a person authorized
 to sign correspondence under 37 CFR 1.33(b) . No special
 language is required in making the claim for priority, and any expression which can
 be reasonably interpreted as claiming the benefit of the foreign application is
 accepted as the claim for priority. For applications filed prior to September 16,
 2012, the claim for priority must appear in the oath or declaration under
 37 CFR
 1.63 or in an application data sheet ( 37 CFR
 1.76 ). See 37 CFR 1.55(n) .
 

 For applications filed on or after September 21, 2004,
 a claim under 37 CFR 1.55 for priority of a prior-filed foreign application
 that was present on the filing date of the application is considered an incorporation
 by reference of the prior-filed foreign priority application as to inadvertently
 omitted material, subject to the conditions and requirements of 37 CFR
 1.57(b) . The purpose of 37 CFR
 1.57(b) is to provide a safeguard for applicants when all or a
 portion of the specification and/or drawing(s) is (are) inadvertently omitted from an
 application. See MPEP §§ 201.06(c) and
 217 . However, applicants are encouraged to provide an
 explicit incorporation by reference statement to the prior-filed foreign priority
 application(s) for which priority is claimed under 37 CFR 1.55 
 if applicants do not wish the incorporation by reference to be limited to
 inadvertently omitted material pursuant to 37 CFR
 1.57(b) . See 37 CFR 1.57(c) . Thus, the
 incorporation by reference statement can be relied upon to permit the entering of a
 portion of the foreign priority application into the U.S. application when a portion
 of the foreign priority application has been inadvertently omitted from the U.S.
 application, or to permit the correction of translation error in the U.S. application
 where the foreign priority application is in a non-English language. See
 MPEP §
 217 for additional information regarding 37 CFR
 1.57(b) , and MPEP § 608.01(p) for information
 regarding incorporation by reference statements. For information regarding
 37 CFR
 1.57(a) and filing by reference to a previously filed
 application, see MPEP §
 601.01(a) , subsection III.
 

 II. THE SAME INVENTOR OR AT LEAST ONE COMMON JOINT INVENTOR Pursuant to 35 U.S.C. 119(a) , the foreign
 application must have been filed by the same applicant as the applicant in the United
 States, or by applicant's legal representatives or assigns. Consistent with
 longstanding Office policy, this is interpreted to mean that the U.S. and foreign
 applications must name the same inventor or have at least one joint inventor in
 common. For example, a right of priority does not exist in the case of an application
 of sole inventor A in the foreign country and sole inventor B in the United States,
 even though the two applications may be owned by the same party. The application in
 the foreign country may have been filed by the assignee, or by the legal
 representative or agent of the inventor, rather than by the inventor, but in such
 cases the name of the inventor is usually given in the foreign application on a paper
 filed therein. Joint inventors A and B in a nonprovisional application filed in the
 United States Patent and Trademark Office may properly claim the benefit of an
 application filed in a foreign country by A and another application filed in a
 foreign country by B, i.e., A and B may each claim the benefit of their foreign filed
 applications. See MPEP § 602.09 for more information
 about joint inventors. See MPEP §§ 602.01(c) and
 1412.04 for correction of inventorship. If upon filing of
 the U.S. application and the filing of a relied upon prior-filed foreign application
 there is an overlap in appropriately named inventorship, an application can properly
 claim right of priority of the prior filed application’s filing date pursuant to
 35 U.S.C.
 119 . See 37 CFR 1.45 , 1.48 and
 1.78 . 
 

 III. TRANSITION APPLICATION STATEMENT If a nonprovisional application filed on or after March
 16, 2013, claims priority to a foreign application filed prior to March 16, 2013, and
 also contains, or contained at any time, a claim to a claimed invention that has an
 effective filing date (as defined in 35 U.S.C. 100(i) ) on or after
 March 16, 2013, the applicant must provide a statement to that effect within a
 specified time period. See 37 CFR 1.55(k) and
 MPEP §
 210 , subsection III. Nonprovisional international design
 applications are excluded from the transition provision of 37 CFR
 1.55(k) , as such applications can only be filed on or after May
 13, 2015.
 

 

 
 213.03 Time for Filing U.S. Nonprovisional
 Application [R-07.2022]
 

 The United States nonprovisional application must be filed
 not later than twelve months (six months in the case of a design application) after the
 date on which the foreign application was filed, unless the right of priority has been
 restored, or the nonprovisional application must be entitled to claim the benefit under
 35 U.S.C.
 120 , 121 , 365(c) , or
 386(c) of an application that was filed not later than twelve
 months (six months in the case of a design application) after the date on which the
 foreign application was filed, unless the right of priority has been restored. See
 37 CFR
 1.55(c) and subsection III, below. This twelve-month period is
 subject to 35 U.S.C.
 21(b) (and 37 CFR 1.7(a) ) and PCT Rule 80.5 , and
 the six month period is subject to 35 U.S.C. 21(b) , 37 CFR
 1.7(a) , and Hague Agreement Rule 4(4). 
 

 35 U.S.C.
 21(b) and 37 CFR 1.7(a) provide that when the
 day, or the last day, for taking an action (e.g., filing a nonprovisional application
 within twelve months of the date on which the foreign application was filed) or paying a
 fee in the Office falls on Saturday, Sunday, or a federal holiday within the District of
 Columbia, the action may be taken, or fee paid, on the next succeeding secular or
 business day. PCT Rule
 80.5 has similar provisions relating to the expiration of any
 period during which any document or fee in an international application must reach a
 national Office or intergovernmental organization. Hague Agreement Rule 4(4) provides
 that if the period expires on a day on which the International Bureau or the office
 concerned is not open to the public, the period shall expire on the first subsequent day
 on which the International Bureau or the office concerned is open to the public.
 

 In computing this twelve months (or six months in the case
 of a design application), the first day is not counted; thus, if an application was
 filed in Canada on January 3, 1983, the U.S. nonprovisional application may be filed on
 January 3, 1984. The Paris Convention specifies in Article 4C(2) that “the day of filing
 is not counted in this period.” (This is the usual method of computing periods, for
 example a 6-month period for reply to an Office action dated January 2 does not expire
 on July 1, but the reply may be made on July 2.) If the last day of the twelve months is
 a Saturday, Sunday, or federal holiday within the District of Columbia, the U.S.
 non-provisional application is in time if filed on the next succeeding business day;
 thus, if the foreign application was filed on September 4, 1981, the U.S. nonprovisional
 application is in time if filed on September 7, 1982, since September 4, 1982, was a
 Saturday and September 5, 1982 was a Sunday and September 6, 1982 was a federal holiday.
 In view of 35 U.S.C.
 21 , and the Paris Convention which provides “if the last day of
 the period is an official holiday, or a day on which the Office is not open for the
 filing of applications in the country where protection is claimed, the period shall be
 extended until the first following working day” ( Article 4C(3) ), if the twelve months
 expires on Saturday, the U.S. application may be filed on the following Monday. Note
 Ex parte Olah, 131 USPQ 41 (Bd. App. 1960). See, e.g.,
 Dubost v. U.S. Patent and Trademark Office, 777 F.2d 1561, 1562,
 227 USPQ 977, 977 (Fed. Cir. 1985).
 

 I. FILING OF PAPERS DURING UNSCHEDULED CLOSINGS OF THE U.S. PATENT AND TRADEMARK
 OFFICE 37 CFR
 1.9(h) provides that the definition of “Federal holiday within
 the District of Columbia” includes an official closing of the Office. When the entire
 U.S. Patent and Trademark Office is officially closed for business for an entire day,
 for reasons due to adverse weather or other causes, the Office will consider each
 such day a “Federal holiday within the District of Columbia” under 35 U.S.C. 21 .
 Any action or fee due on such a day may be taken, or fee paid, on the next succeeding
 business day the Office is open. In addition, 37 CFR 1.6(a)(1) provides “[t]he
 U.S. Patent and Trademark Office is not open for the filing of correspondence on any
 day that is a Saturday, Sunday or Federal holiday within the District of Columbia” to
 clarify that any day that is a Saturday, Sunday or federal holiday within the
 District of Columbia is a day that the U.S. Patent and Trademark Office is not open
 for the filing of applications within the meaning of Article 4C(3) of the Paris
 Convention. Note further that in accordance with 37 CFR 1.6(a)(2) , even when the
 Office is not open for the filing of correspondence on any day that is a Saturday,
 Sunday or federal holiday within the District of Columbia, correspondence deposited
 as Priority Mail Express ® with the USPS in accordance with
 37 CFR
 1.10 or filed via the USPTO patent electronic filing system
 will be considered filed on the date of its deposit, regardless of whether that date
 is a Saturday, Sunday or federal holiday within the District of Columbia (under
 35 U.S.C.
 21(b) or 37 CFR 1.7 ).
 

 When the U.S. Patent and Trademark Office is open for
 business during any part of a business day between 8:30 a.m. and 5:00 p.m., papers
 are due on that day even though the Office may be officially closed for some period
 of time during the business day because of an unscheduled event. The procedures of
 37 CFR
 1.10 may be used for filing applications. Information regarding
 whether or not the Office is officially closed on any particular day may be obtained
 by calling 1-800-PTO-9199 or (571) 272-1000. 
 

 II. FIRST FOREIGN APPLICATION The twelve months is from earliest foreign filing
 except as provided in 35 U.S.C. 119(c) . If an inventor
 has filed an application in France on October 4, 1981, and an identical application
 in the United Kingdom on March 3, 1982, and then files in the United States on
 February 2, 1983, the inventor is not entitled to the right of priority at all; the
 inventor would not be entitled to the benefit of the date of the French application
 since this application was filed more than twelve months before the U.S. application,
 and the inventor would not be entitled to the benefit of the date of the United
 Kingdom application since this application is not the first one filed.
 Ahrens v. Gray, 1931 C.D. 9, 402 O.G. 261 (Bd. App. 1929). If
 the first foreign application was filed in a country which is not recognized with
 respect to the right of priority, it is disregarded for this purpose.
 35 U.S.C.
 119(c) extends the right of priority to “subsequent” foreign
 applications if one earlier filed had been withdrawn, abandoned, or otherwise
 disposed of, under certain conditions.
 

 The United Kingdom and a few other countries have a
 system of “post-dating” whereby the filing date of an application is changed to a
 later date. This “post-dating” of the filing date of the application does not affect
 the status of the application with respect to the right of priority; if the original
 filing date is more than one year prior to the U.S. filing no right of priority can
 be based upon the application. See In re Clamp, 151 USPQ 423
 (Comm’r Pat. 1966).
 

 If an applicant has filed two foreign applications in
 recognized countries, one outside the year and one within the year, and the later
 application discloses additional subject matter, a claim in the U.S. application
 specifically limited to the additional disclosure would be entitled to the date of
 the second foreign application since this would be the first foreign application for
 that subject matter.
 

 III. RESTORING THE RIGHT OF PRIORITY Effective December 18, 2013, title II of the Patent Law
 Treaties Implementation Act (PLTIA) provides for restoration of the right of priority
 under 35 U.S.C.
 119(a) through (d) and (f) ,
 172 , and 365(a) or (b) . As
 provided in 37
 CFR 1.55(c) , if the subsequent application has a filing date
 which is after the expiration of the twelve-month period (or six-month period in the
 case of a design application), but within two months from the expiration of the
 period, the right of priority in the subsequent application may be restored under
 PCT Rule
 26bis.3 for an international application,
 or upon petition under 37 CFR 1.55(c) , if the delay in
 filing the subsequent application within the period was unintentional. Thus, an
 application may now validly claim priority under 35 U.S.C. 119(a) through (d) and
 (f) , 172 , 365(a) or (b) ,
 or 386(a)
 or (b) to a foreign application filed up to fourteen months
 earlier (or eight months earlier in the case of a design application). As a result of
 title I of the PLTIA, 37 CFR 1.55(c) was amended
 effective May 13, 2015, to provide that restoration of the right of priority is
 available for priority claims under 35 U.S.C. 386(a) or
 (b) . In addition, 37 CFR 1.55(c) was amended to
 provide that a petition to restore the right of priority filed on or after May 13,
 2015, must be filed in the subsequent application, or in the earliest nonprovisional
 application claiming benefit under 35 U.S.C. 120 , 121 ,
 365(c) , or 386(c) to the subsequent
 application, if such subsequent application is not a nonprovisional application. 
 

 A petition under 37 CFR 1.55(c) requires:
 

 
 (A) the priority claim under 35 U.S.C.
 119(a) through (d) or (f) ,
 365(a) or (b) , or 386(a) or (b) in an application data
 sheet, identifying the foreign application to which priority is claimed, by
 specifying the application number, country (or intellectual property
 authority), day, month, and year of its filing (unless previously submitted in
 an application data sheet); 
 

 (B) the petition fee as set forth in
 37 CFR 1.17(m) ; and 
 

 (C) a statement that the delay in filing the
 subsequent application within the twelve-month period (or six-month period in
 the case of a design application) set forth in 37 CFR
 1.55(b) was unintentional. 
 

 
 The Director may require additional information where
 there is a question whether the delay was unintentional. 
 

 Where the subsequent application is not a
 nonprovisional application, the Office may not have an application file established
 for the subsequent application. This would occur, for example, where an international
 application designating the United States was filed in a foreign Receiving Office and
 the applicant filed a continuation of an international application under
 35 U.S.C.
 111(a) rather than entering the national stage under
 35 U.S.C.
 371 . Thus, in this situation, the petition under
 37 CFR
 1.55(c) may be filed in the earliest nonprovisional application
 claiming benefit under 35 U.S.C. 120 , 121 ,
 365(c) , or 386(c) to the subsequent
 application. However, the statement required under 37 CFR
 1.55(c)(3) must still relate to the unintentional delay in
 filing the subsequent application, i.e., the international application. 
 

 If a petition under 37 CFR
 1.55(c) to restore the right of priority is granted, a further
 petition under 37 CFR 1.55(c) is not required in an application entitled to
 claim the benefit under 35 U.S.C. 120 , 121 ,
 365(c) , or 386(c) of the subsequent
 application for which the right of priority was restored. A copy of the decision
 granting the petition should be filed with any application claiming the benefit of
 the subsequent application and the foreign application to ensure that the Office
 recognizes that the right of priority has been restored. 
 

 It should be noted that although an application may now
 validly claim priority under 35 U.S.C. 119(a) through
 (d) and (f) , 172 ,
 365(a) or (b) , or 386(a) or (b) to a foreign application
 filed up to fourteen months earlier (or eight months earlier in the case of a design
 application) in view of the restoration provision of 37 CFR
 1.55(c) , an application subject to examination under pre-AIA
 first to invent laws (rather than the first inventor to file provisions of the AIA)
 would still be subject to the 12-month statutory time periods in pre-AIA 35 U.S.C.
 102(b) and (d) which are measured from the
 U.S. filing date. Thus, the application may still be subject to a rejection under
 pre-AIA 35
 U.S.C. 102(b) or (d) despite the priority claim.
 See MPEP §§
 2133 and 2135 et seq. 

 

 
 213.04 Requirement to File Priority Claim and Certified
 Copy During Pendency of Application [R-07.2022]
 

 
 37 CFR 1.55 Claim for foreign priority. 

 *****

 
 (g) Requirement for filing priority claim, certified copy of foreign
 application, and translation in any application. 
 (1) The claim for priority and the
 certified copy of the foreign application specified in 35 U.S.C.
 119(b) or PCT Rule 17 must, in
 any event, be filed within the pendency of the application, unless filed
 with a petition under paragraph (e) or (f) of this section, or with a
 petition accompanied by the fee set forth in § 1.17(g) which includes a showing of good and
 sufficient cause for the delay in filing the certified copy of the
 foreign application in a design application. If the claim for priority or
 the certified copy of the foreign application is filed after the date the
 issue fee is paid, the patent will not include the priority claim unless
 corrected by a certificate of correction under 35 U.S.C.
 255 and § 1.323 .
 

 (2) The Office may require that the claim
 for priority and the certified copy of the foreign application be filed
 earlier than otherwise provided in this section:
 
 (i) When the application is involved
 in an interference (see § 41.202 of this
 chapter) or derivation (see part 42 of this chapter)
 proceeding;
 

 (ii) When necessary to overcome the
 date of a reference relied upon by the examiner; or
 

 (iii) When deemed necessary by the
 examiner.
 

 
 

 (3) An English language translation of a
 non-English language foreign application is not required except:
 
 (i) When the application is involved
 in an interference (see § 41.202 of this
 chapter) or derivation (see part 42 of this chapter)
 proceeding;
 

 (ii) When necessary to overcome the
 date of a reference relied upon by the examiner; or
 

 (iii) When specifically required by the
 examiner.
 

 
 

 (4) If an English language translation of a
 non-English language foreign application is required, it must be filed
 together with a statement that the translation of the certified copy is
 accurate.
 

 
 

 
 *****

 

 37 CFR
 1.55(g) sets forth the requirements for filing a priority claim,
 certified copy of foreign application, and translation that are applicable in all
 applications. 37 CFR 1.55(g)(1) specifies that the
 claim for priority and the certified copy of the foreign application specified in
 35 U.S.C.
 119(b) or PCT Rule 17 must, in any event, be
 filed within the pendency of the application, unless filed with a petition under
 37 CFR
 1.55(e) or (f) , or with a petition accompanied
 by the fee set forth in 37 CFR 1.17(g) which includes a
 showing of good and sufficient cause for the delay in filing the certified copy of the
 foreign application in a design application. These provisions do not in any way
 supersede the timing requirements elsewhere in 37 CFR 1.55 for filing a claim for
 priority and the certified copy of the foreign application. 37 CFR
 1.55(g)(1) simply indicates that the claim for priority and the
 certified copy of the foreign application must be filed in or received by the Office
 within the pendency of the application in all situations, unless an appropriate petition
 is filed.
 

 If the claim for priority or the certified copy of the
 foreign application is filed after the date the issue fee is paid, the patent will not
 include the priority claim unless corrected by a certificate of correction under
 35 U.S.C.
 255 and 37 CFR 1.323 .
 

 In the following situations, the Office may require that
 the claim for priority and the certified copy of the foreign application be filed
 earlier than otherwise provided in 37 CFR 1.55 (see 37 CFR
 1.55(g)(2) ), or that an English translation of a non-English
 language foreign application be filed (see 37 CFR 1.55(g)(3) ): 
 

 
 (1) When the application is involved in an
 interference (see 37 CFR 41.202 ) or derivation
 (see 37 CFR part 42) proceeding; 
 

 (2) When necessary to overcome the date of a
 reference relied upon by the examiner; or 
 

 (3) When deemed necessary by the examiner. 

 
 If an English language translation of a non-English
 language foreign application is required, the translation must be that of the certified
 copy (of the foreign application as filed) and it must be filed together with a
 statement that the translation of the certified copy is accurate.
 

 

 
 213.05 Right of Priority Based Upon an Application for an
 Inventor’s Certificate [R-08.2017]
 

 
 35 U.S.C. 119 
 Benefit of earlier filing date; right of
 priority. 

 *****

 
 (d) Applications for inventors’ certificates filed in
 a foreign country in which applicants have a right to apply, at their
 discretion, either for a patent or for an inventor’s certificate shall be
 treated in this country in the same manner and have the same effect for purpose
 of the right of priority under this section as applications for patents,
 subject to the same conditions and requirements of this section as apply to
 applications for patents, provided such applicants are entitled to the benefits
 of the Stockholm Revision of the Paris Convention at the time of such
 filing.
 

 
 *****

 

 
 37 CFR 1.55 Claim for foreign priority. 

 *****

 
 (l) Inventor's certificates. An applicant in a nonprovisional
 application may under certain circumstances claim priority on the basis of one
 or more applications for an inventor’s certificate in a country granting both
 inventor’s certificates and patents. To claim the right of priority on the
 basis of an application for an inventor’s certificate in such a country under
 35 U.S.C.
 119(d) , the applicant when submitting a claim for such
 right as specified in this section, must include an affidavit or declaration.
 The affidavit or declaration must include a specific statement that, upon an
 investigation, he or she is satisfied that to the best of his or her knowledge,
 the applicant, when filing the application for the inventor’s certificate, had
 the option to file an application for either a patent or an inventor’s
 certificate as to the subject matter of the identified claim or claims forming
 the basis for the claim of priority. 
 

 
 *****

 

 37 CFR
 1.55(l) contains the provisions relating to claiming priority to
 inventor's certificates. An inventor’s certificate may form the basis for rights of
 priority under 35
 U.S.C. 119(d) only when the country in which it is filed gives to
 applicants, at their discretion, the right to apply, on the same invention, either for a
 patent or for an inventor’s certificate. The affidavit or declaration specified under
 37 CFR
 1.55(l) is only required for the purpose of ascertaining whether,
 in the country where the application for an inventor’s certificate originated, this
 option generally existed for applicants with respect to the particular subject matter of
 the invention involved. The requirements of 35 U.S.C. 119(d) and
 37 CFR
 1.55(l) are not intended, however, to probe into the eligibility
 of the particular applicant to exercise the option in the particular priority
 application involved.
 

 It is recognized that certain countries that grant
 inventors’ certificates also provide by law that their own nationals who are employed in
 state enterprises may only receive inventors’ certificates and not patents on inventions
 made in connection with their employment. This will not impair their right to be granted
 priority in the United States based on the filing of the inventor’s certificate.
 

 Accordingly, affidavits or declarations filed pursuant to
 37 CFR
 1.55(l) need only show that in the country in which the original
 inventor’s certificate was filed, applicants generally have the right to apply at their
 own option either for a patent or an inventor’s certificate as to the particular subject
 matter of the invention. Priority rights on the basis of an inventor’s certificate
 application will be honored only if the applicant had the option or discretion to file
 for either an inventor’s certificate or a patent on the invention in applicant's home
 country. Certain countries which grant both patents and inventor’s certificates issue
 only inventor’s certificates on certain subject matter, generally pharmaceuticals,
 foodstuffs, and cosmetics.
 

 To ensure compliance with the treaty and statute,
 37 CFR
 1.55(l) provides that at the time of claiming priority to an
 inventor’s certificate, the applicant must submit an affidavit or declaration stating
 that the applicant when filing the application for the inventor’s certificate had the
 option either to file for a patent or an inventor’s certificate as to the subject matter
 forming the basis for the claim of priority.
 

 

 
 213.06 Claiming Priority and Filing a Certified Copy in a
 National Stage Application (35 U.S.C. 371) [R-01.2024]
 

 
 37 CFR 1.55 Claim for foreign priority. 

 *****

 
 (d) Time for filing priority claim— 
 *****

 (2) Application under 35 U.S.C.
 371 . The claim for priority must be made
 within the time limit set forth in the PCT and the Regulations under the
 PCT in an international application entering the national stage under
 35
 U.S.C. 371 , except as provided in paragraph (e) of
 this section. 
 

 
 

 
 *****

 
 (f) Time for filing certified copy of foreign application— 
 *****

 (2) Application under 35 U.S.C.
 371 . A certified copy of the foreign
 application must be filed within the time limit set forth in the PCT and
 the Regulations under the PCT in an international application entering
 the national stage under 35 U.S.C. 371 . If a
 certified copy of the foreign application is not filed during the
 international stage in an international application in which the national
 stage commenced on or after December 18, 2013, a certified copy of the
 foreign application must be filed within the later of four months from
 the date on which the national stage commenced under 35 U.S.C. 371(b) or
 (f) (§ 1.491(a) ), four
 months from the date of the initial submission under 35 U.S.C.
 371 to enter the national stage, or sixteen months
 from the filing date of the prior foreign application, except as provided
 in paragraphs (h), (i), and (j) of this section.
 

 
 

 
 *****

 

 
 PCT Rule 4 

 The Request (Contents) 

 *****

 4.10 Priority Claim 

 
 (a) Any declaration referred to in Article 8(1) (“priority claim”) may claim the priority
 of one or more earlier applications filed either in or for any country party to
 the Paris Convention for the Protection of Industrial Property or in or for any
 Member of the World Trade Organization that is not party to that Convention.
 Any priority claim shall be made in the request; it shall consist of a
 statement to the effect that the priority of an earlier application is claimed
 and shall indicate:
 
 (i) the date on which the earlier application was
 filed; 
 

 (ii) the number of the earlier application;

 (iii) where the earlier application is a national
 application, the country party to the Paris Convention for the Protection
 of Industrial Property or the Member of the World Trade Organization that
 is not party to that Convention in which it was filed;
 

 (iv) where the earlier application is a regional
 application, the authority entrusted with the granting of regional
 patents under the applicable regional patent treaty;
 

 (v) where the earlier application is an international
 application, the receiving Office with which it was filed.
 

 
 

 (b) In addition to any indication required under paragraph
 (a)(iv) or (v):
 
 (i) where the earlier application is a regional
 application or an international application, the priority claim may
 indicate one or more countries party to the Paris Convention for the
 Protection of Industrial Property for which that earlier application was
 filed;
 

 (ii) where the earlier application is a regional
 application and at least one of the countries party to the regional
 patent treaty is neither party to the Paris Convention for the Protection
 of Industrial Property nor a Member of the World Trade Organization, the
 priority claim shall indicate at least one country party to that
 Convention or one Member of the Organization for which that earlier
 application was filed.
 

 
 

 (c) For the purposes of paragraphs (a) and (b),
 Article
 2(vi) shall not apply.
 

 (d) If, on September 29, 1999, paragraphs (a) and (b) as
 amended with effect from January 1, 2000, are not compatible with the national
 law applied by a designated Office, those paragraphs as in force until December
 31, 1999, shall continue to apply after that date in respect of that designated
 Office for as long as the said paragraphs as amended continue not to be
 compatible with that law, provided that the said Office informs the
 International Bureau accordingly by October 31, 1999. The information received
 shall be promptly published by the International Bureau in the Gazette.
 

 
 *****

 

 
 PCT Rule 17 

 The Priority Document 

 17.1. Obligation to Submit Copy of Earlier National or International
 Application 

 
 (a) Where the priority of an earlier national or
 international application is claimed under Article 8 , a copy of that
 earlier application, certified by the authority with which it was filed (“the
 priority document”), shall, unless that priority document has already been
 filed with the receiving Office together with the international application in
 which the priority claim is made, and subject to paragraphs (b) and
 (b -bis ), be submitted by the applicant to the
 International Bureau or to the receiving Office not later than 16 months after
 the priority date, provided that any copy of the said earlier application which
 is received by the International Bureau after the expiration of that time limit
 shall be considered to have been received by that Bureau on the last day of
 that time limit if it reaches it before the date of international publication
 of the international application.
 

 (b) Where the priority document is issued by the
 receiving Office, the applicant may, instead of submitting the priority
 document, request the receiving Office to prepare and transmit the priority
 document to the International Bureau. Such request shall be made not later than
 16 months after the priority date and may be subjected by the receiving Office
 to the payment of a fee.
 

 

 (c) If the requirements of none of the three
 preceding paragraphs are complied with, any designated Office may, subject to
 paragraph (d), disregard the priority claim, provided that no designated Office
 shall disregard the priority claim before giving the applicant an opportunity
 to furnish the priority document within a time limit which shall be reasonable
 under the circumstances.
 

 (d) No designated Office shall disregard the priority
 claim under paragraph (c) if the earlier application referred to in paragraph
 (a) was filed with it in its capacity as national Office or if the priority
 document is, in accordance with the Administrative Instructions, available to
 it from a digital library.
 

 
 17.2. Availability of Copies 

 
 (a) Where the applicant has complied with
 Rule
 17.1(a) , (b) or
 (b -bis ), the International Bureau shall, at the specific
 request of the designated Office, promptly but not prior to the international
 publication of the international application, furnish a copy of the priority
 document to that Office. No such Office shall ask the applicant himself to
 furnish it with a copy. The applicant shall not be required to furnish a
 translation to the designated Office before the expiration of the applicable
 time limit under Article 22 . Where the
 applicant makes an express request to the designated Office under
 Article
 23(2) prior to the international publication of the
 international application, the International Bureau shall, at the specific
 request of the designated Office, furnish a copy of the priority document to
 that Office promptly after receiving it.
 

 (b) The International Bureau shall not make copies of
 the priority document available to the public prior to the international
 publication of the international application.
 

 (c) Where the international application has been
 published under Article 21 , the
 International Bureau shall furnish a copy of the priority document to any
 person upon request and subject to reimbursement of the cost unless, prior to
 that publication:
 
 (i) the international application was
 withdrawn,
 

 (ii) the relevant priority claim was withdrawn
 or considered, under Rule
 26bis.2(b) , not to have been
 made.
 

 
 

 
 

 

 
 37 CFR 1.451 The priority claim and priority document in an
 international application. 

 
 (a) The claim for priority must, subject to paragraph
 (d) of this section, be made on the Request ( PCT Rule
 4.10 ) in a manner complying with sections 110 and 115 of
 the Administrative Instructions.
 

 (b) Whenever the priority of an earlier United States
 national application or international application filed with the United States
 Receiving Office is claimed in an international application, the applicant may
 request in the Request or in a letter of transmittal accompanying the
 international application upon filing with the United States Receiving Office
 or in a separate letter filed in the United States Receiving Office not later
 than 16 months after the priority date, that the United States Patent and
 Trademark Office prepare a certified copy of the prior application for
 transmittal to the International Bureau ( PCT Article 8 and
 PCT Rule
 17 ). The fee for preparing a certified copy is set forth
 in § 1.19(b)(1) .
 

 (c) If a certified copy of the priority document is
 not submitted together with the international application on filing, or, if the
 priority application was filed in the United States and a request and
 appropriate payment for preparation of such a certified copy do not accompany
 the international application on filing or are not filed within 16 months of
 the priority date, the certified copy of the priority document must be
 furnished by the applicant to the International Bureau or to the United States
 Receiving Office within the time limit specified in PCT Rule
 17.1(a) .
 

 (d) The applicant may correct or add a priority claim
 in accordance with PCT Rule
 26bis.1 . 
 

 
 

 37 CFR
 1.55(d)(2) and (f)(2) pertain to the time for
 filing a priority claim and the time for filing a certified copy of a foreign
 application in an international application entering the national stage under
 35 U.S.C.
 371 . 
 

 In an international application entering the national
 stage under 35 U.S.C.
 371 , the claim for priority must be made and a certified copy of
 the foreign application must be filed within the time limit set forth in the PCT and the
 Regulations under the PCT with limited exceptions. See MPEP §§
 214.02 and 215.02 .
 Note that it is permissible, but not required, to present the claim for priority in an
 application data sheet in an international application entering the national stage under
 35 U.S.C.
 371 . 
 

 An international application which seeks to establish the
 right of priority must comply with the conditions and requirements as prescribed by the
 Treaty and the PCT Regulations, in order to avoid rejection of the claim to the right of
 priority. Reference is especially made to the requirement of making a declaration of the
 claim of priority at the time of filing of the international application
 ( Article
 8(1) of the Treaty and Rule 4.10 of the PCT Regulations) or
 correcting or adding a priority claim ( PCT Rule 26bis.1 )
 and the requirement of either filing a certified copy of the priority document with the
 international application, or submitting a certified copy of the priority document to
 the International Bureau at a certain time ( Rule 17 of the PCT Regulations). The
 submission of the priority document to the International Bureau is only required in
 those instances where priority is based on an earlier filed foreign
 national application. With respect to the requirements of
 37 CFR
 1.55 as they pertain to applications entering the national stage
 under 35 U.S.C.
 371 , if the applicant submitted a certified copy of the foreign
 priority document in compliance with PCT Rule 17 during the international
 phase, the International Bureau will forward a copy of the certified priority document
 to each Designated Office that has requested a copy of the foreign priority document and
 the copy received from the International Bureau is acceptable to establish that
 applicant has filed a certified copy of the priority document. See MPEP § 1893.03(c) .
 If, however, the International Bureau is unable to forward a copy of the certified
 priority document because the applicant failed to submit a certified copy of the foreign
 priority document during the international phase, the applicant will need to provide a
 certified copy of the priority document or have the Office retrieve the priority
 application in accordance with the priority document exchange program during the
 national stage to fulfill the requirements of 37 CFR 1.55 .
 

 If the priority document is an earlier national
 application and did not accompany the international application when filed with the
 Receiving Office, an applicant must submit such document to the International Bureau not
 later than 16 months after the priority date. However, should an applicant request early
 processing of the international application in accordance with Article 23(2) of
 the Treaty, the priority document may not be available to the Office at that time
 ( Rule
 17.2(a) of the PCT Regulations). Applicants are encouraged to
 check Patent Center to verify that the certified copy has been received from the
 International Bureau. The formal requirements for obtaining the right of priority under
 35 U.S.C.
 365 differ somewhat from those imposed by 35 U.S.C.
 119(a) - (d) and (f) , however, the
 substantive right of priority is the same, in that it is derived from Article 4 of the
 Paris Convention for the Protection of Industrial Property ( Article 8(2) of
 the Treaty).
 

 35 U.S.C.
 365(c) recognizes the benefit of the filing date of an earlier
 application under 35 U.S.C. 120 . Any international application designating the
 United States, whether filed with a Receiving Office in this country or abroad, and even
 though other countries may have also been designated, has the effect of a regular
 national application in the United States, as of the international filing date. As such,
 any later filed national application, or international application designating the
 United States, may claim the benefit of the filing date of an earlier international
 application designating the United States, if the requirements and conditions of
 35 U.S.C.
 120 are fulfilled. Under the same circumstances, the benefit of
 the earlier filing date of a national application may be obtained in a later filed
 international application designating the United States. See MPEP §
 211.01(c) .
 

 In those instances, where the applicant relies on an
 international application designating, but not originating in, the United States the
 Director may require submission of a copy of such application together with an English
 translation, since in some instances, and for various reasons, a copy of that
 international application or its translation might not otherwise be filed in the U.S.
 Patent and Trademark Office. 
 

 

 
 213.07 Claiming Priority and Filing a Certified Copy in a
 Nonprovisional International Design Application [R-07.2015]
 

 
 37 CFR 1.55 Claim for foreign priority. 

 *****

 
 (m) Time for filing priority claim and certified copy of foreign
 application in an international design application designating the United
 States. In an international design application designating the
 United States, the claim for priority may be made in accordance with the Hague
 Agreement and the Hague Agreement Regulations. In a nonprovisional
 international design application, the priority claim, unless made in accordance
 with the Hague Agreement and the Hague Agreement Regulations, must be presented
 in an application data sheet (§ 1.76(b)(6) ), identifying
 the foreign application for which priority is claimed, by specifying the
 application number, country (or intellectual property authority), day, month,
 and year of its filing. In a nonprovisional international design application,
 the priority claim and certified copy must be furnished in accordance with the
 time period and other conditions set forth in paragraph (g) of this
 section.
 

 
 *****

 
 (o) Priority under 35 U.S.C. 386(a) or
 (b) . The 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.
 

 
 *****

 

 Pursuant to 35 U.S.C. 386(a) and
 37 CFR
 1.55 , a nonprovisional application may make a claim of foreign
 priority in accordance with the conditions and requirements of 35 U.S.C.
 119(a) - (d) and 172 with
 respect to a prior international design application that designates at least one country
 other than the United States. Pursuant to 35 U.S.C. 386(b) and
 37 CFR
 1.55 , an international design application designating the United
 States may make a claim of foreign priority in accordance with the conditions and
 requirements of 35
 U.S.C. 119(a) - (d) and 172 and the
 Hague Agreement and Regulations thereunder with respect to a prior foreign application,
 international application (PCT) designating at least one country other than the United
 States, or a prior international design application designating at least one country
 other than the United States. The provisions of 35 U.S.C.
 386(a) and (b) apply to nonprovisional
 applications, international applications (PCT) and international design applications
 filed on or after May 13, 2015, and patents issued therefrom. See 37 CFR
 1.55(o) .
 

 See MPEP § 2920.05(d) for additional
 information pertaining to the right of priority based upon an international design
 application.
 

 

 [top] 

 

 

 
 

 
 

 

 

 

 
 
 
 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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