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Topic: 102(d) Question (Read 1123 times) |
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patag2001
Junior Member
Posts: 82
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102(d) Question
« on: Dec 13th, 2007, 4:11pm » |
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At least one of the requirements to bar filing a US patent application as described as follows in 102(d) says a foreign application must be filed more than 12 months before the effective filing date of the United States application. What if I file a foreign application in France 15 months prior to filing the US application and also file a PCT via the French receiving office designating the US? Does the 30 months allowed to national stage with the PCT to mask the bar of 102 (d)?
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DJoshEsq
Full Member
Posts: 104
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Re: 102(d) Question
« Reply #1 on: Dec 14th, 2007, 3:17pm » |
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If you file an application in France, you must file a corresponding application under the provisions of the PCT or in the U.S. Patent Office within 12 months!
Any foreign application filed more than 12 months prior to the PCT application date or the U.S. filing date will be prior art in the U.S.
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D. Joshua Smith, Esq.
Registered Patent Attorney
McDonald Hopkins, LLC
Cleveland, OH
216-348-5400
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Isaac
Senior Member
Posts: 3472
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Re: 102(d) Question
« Reply #2 on: Dec 14th, 2007, 9:59pm » |
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"What if I file a foreign application in France 15 months prior to filing the US application and also file a PCT via the French receiving office designating the US?"
102(d) also requires that the foreign application issue prior to filing the US application.
"Any foreign application filed more than 12 months prior to the PCT application date or the U.S. filing date will be prior art in the U.S."
I don't believe this is correct. Foreign applications are prior art in the US only after publication dates and they don't have 102(e) effect.
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| « Last Edit: Dec 15th, 2007, 2:45pm by Isaac » |
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Isaac
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VG
Newbie
Posts: 3
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Re: 102(d) Question
« Reply #3 on: Dec 19th, 2007, 3:59pm » |
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My vote for Isaac!
He is right - 102(d) only concerns with the foreign patent applications that are granted before filing of the US application
(I thought someone suggested to consult the MPEP in the prior thread)
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DJoshEsq
Full Member
Posts: 104
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Re: 102(d) Question
« Reply #4 on: Dec 19th, 2007, 5:33pm » |
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Yep I got too excited with that one...it might not be prior art in the U.S. but may be in another country. What I think is important is that in order to claim priority to the foreign app - the PCT must be filed within 12 months of the foreign filing date.
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D. Joshua Smith, Esq.
Registered Patent Attorney
McDonald Hopkins, LLC
Cleveland, OH
216-348-5400
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