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Topic: Missed PCT Priority Deadline (Read 9863 times) |
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Ski_Utah
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Posts: 4
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Re: Missed PCT Priority Deadline
« Reply #5 on: Dec 13th, 2006, 6:44pm » |
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You may be able to claim priority to the non-provisional applicaton to the extent that the non-provisional contains subject matter not in common with the provisional. Thus, the non-provisional is in fact the first filed application for any new subject matter not contained in the provisional. I don't believe that any priority claim to the old subject matter, i.e., matter in common with both applications, can be made.
This may not be too bad considering that most foreign jurisdictions take a strict view on new subject matter (at least much more strict than the U.S.). But, in this case it plays in your favor.
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sans
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Re: Missed PCT Priority Deadline
« Reply #6 on: Dec 14th, 2006, 10:31pm » |
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Is it really required to exclude the subject matter of the provisional application to claim priority from the non provisional application. The provisional application will any way be abandoned and will not be published.
Sans
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Ski_Utah
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Re: Missed PCT Priority Deadline
« Reply #7 on: Dec 18th, 2006, 2:22pm » |
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on Dec 14th, 2006, 10:31pm, sans wrote:
Is it really required to exclude the subject matter of the provisional application to claim priority from the non provisional application. The provisional application will any way be abandoned and will not be published.
Sans |
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I think what I am suggesting is that the right to claim priority to the provisional application under the Paris Convention has been lost since 12 months has passed. Any new matter in the non-provisional is properly included in a new application claiming priority to the non-provisional. The new matter may include the subject matter in the provisional plus some improvement, combination or variation only disclosed in the non-provisional.
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Thor
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Re: Missed PCT Priority Deadline
« Reply #8 on: Apr 3rd, 2007, 8:29pm » |
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Is it so (in general) that the PCT application can still be filed 13 months after the US filing date (without claiming priority) ?
I thought that 12 months is the limit, but perhaps it was the limit only for claiming priority, and assuming that US application was not published, it cannot be considered prior art.
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JimIvey
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Re: Missed PCT Priority Deadline
« Reply #9 on: Apr 4th, 2007, 12:00pm » |
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Well, then you'd have novelty problems. I'm not going through the exercise of determining exactly under what paragraph of Section 102 it would be prior art and whether other jurisdictions have similar rules, but the US application could certainly pose a problem as prior art.
If you where to abandon the US application prior to publication, you might avoid it becoming prior art. Then, your filing date is not so early and there may be other prior art problems you can't eliminate so easily.
Regards.
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James D. Ivey
Law Offices of James D. Ivey
http://www.iveylaw.com
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