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1893.03(b) The Filing Date ofa
U.S. National Stage
Application
An international application designating the U.S.
has two stages (international and national) with the
filing date being the same in both stages. Often the
date of entry into the national stage is confused with
the filing date. It should be borne in mind that the filing
date of the international stage application is also
the filing date for the national stage application. Specifically,
35 U.S.C. 363 provides that
An international application designating the United
States shall have the effect, from its international filing
date under Article 11 of the treaty, of a national application
for patent regularly filed in the Patent andTrademark
Office except as otherwise provided in section l02(e) of
this title.
Similarly, PCT Article II(3) provides that
...an international filing dateshallhave the effect of a
regular national application in each designatedStateas of
the international filing date, which date shall be consideredto
be the actualfiling datein each designated State.
37 CPR 1.496(a), first sentence, reads "International
applications which have complied with the
requirements of 35 U.S.C. 371(c) will be taken up for
action based on the date on which such requirements
were met." Thus, when the file wrapper label or
PALM bib-data sheet is printed, the information is
read from the PALM data base and the information
printed in the filing date box is the date of entry into
the national stage rather than the actual international
filing date. See in the preceding section the sample
National Stage Filing Under 35 U.S.c. 371 wherein
the face of the file of national stage application number
07/XXX,XXX is shown with the date of entry into
the national stage (11/08/91) shown in the FILING
DATE box and the true U.S. filing date (01110/90) is
indicated just to the right of the international application
number (PCTIEP90/xXXXX) in the CONTINU­
ING DATA block.
Applicants are quite often confused as to the true
filing date and will ask for corrected filing receipts
thinking that the information thereon is wrong. This
explanation should offer some clarity. For all legal
purposes, the filing date is the PCT international filing
date. The date of actual entry into the national stage is
PATENT COOPERATION TREATY 1893.03(c)
otherwise the date provided in the PALM system. Any
issued patentwill have all of the relevant dates listed.
1893.03(c) The Priority Date.Prlorlty
Claim, and Priority Papers
for a U.S. National Stage
Application
A U.S. national stage application (filed under
35 U.S.C. 371) may include a claim under 35 U.S.C.
119(a) and 365(b), 35 U.S.C. 119(e), or 35 U.S.C. 120
and 365(c) for benefit of the filing date of a prior
application or applications.
PRIORITY CLAIM UNDER 35 U.S.C. 119(a)
A national stage application which includes a priority
claim under 35 U.S.C. 119(a) and 365(b) must
refer to a priority application, the priority of which
was also claimed in the international application. If
the 35 U.S.C. 119(a) and 35 U.S.C. 365(b) priority
claim is to an application, the priority of which was
properly claimed in the international application, the
claim for priority is acknowledged and the national
stage application file is checked to see if the file contains
a copy of the certified copy of the priority document
submitted to the International Bureau.
If the 35 U.S.c. 119(a) and 365(b) priority claim in
the national stage application is to an application, the
priority of which was not claimed in the international
application, the claim for priority must be denied for
failing to meet the requirements of the Patent Cooperation
Treaty, specifically PCT Rule 4.10.
For a comparison with 35 U.S.C. 119(a)-(d) priority
claims in a national application filed under 35 U.S.C.
111(a) see MPEP § 1895.oI.
THE CERTIFIED COPY
The requirement in PCT Rule 17 for a certified
copy of the foreign priority application is normally
fulfilled by applicant providing a certified copy to the
Receiving Office or to the International Bureau within
16 months from the priority date. Subsequently, the
International Bureau forwards a photocopy of the certified
priority document when it forwards a copy
of the international application (shortly after publication
at 18 months from the priority date) to each Designated
Office. The copy from the International
Bureau is placed in the U.S. national stage file. The
1800-145 August2001