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[mar293s92]

Hello everyone, 

Just beginning my studying for the patent bar - and there is one concept I am trying to get past:

Applicant 1:

1) Files foreign app 1/2010
2) Files US app 10/2010 (makes proper claim for priority)

Applicant 2 (same invention):

1) Files foreign app 2/2010
2) Files US app 8/2010 (makes proper claim for priority)

Applicant 1 has priority date of 1/2010 and 102(e) prior art date of 10/2010
Applicant 2 has priority date of 2/2010 and 102(e) prior art date of 8/2010

Does Applicant 1 or 2 prevail (assume a Int'l app is not involved)?

Thanks!

[NJ Patent1]

mar293:  Applicant 1 can rely defensively on her properly-claimed Paris Convention priority date (see “shall have the same effect” language in §119(a), and also consult §104(a)). 

If App1 and App2 disclose and claim - or either is amended to claim - the same invention then, under the present regime, the Office ought to declare (or either Applicant could attempt to provoke) an interference, in which case Applicant1 should be the presumptive senior party if both foreign countries are WTO countries - which in reality will be the case 99+% of the time.  But Applicant 2 could attempt to prove prior invention (again consult §104(a)).
 
Get real cozy with MPEP 2100 and good luck! 

[mar293s92]

Thanks NJ Patent1!