Page 1 of 2 Version 1.0 (Nov.

2002)

FLOWCHARTS FOR 35 U.S.C. § 102(e) DATES:

Apply to all applications and patents, whenever filed

Chart I: For U.S. patent or U.S. patent application publication under

35 U.S.C. §122(b) (includes publications of § 371 applications)

Is the reference a U.S. patent or U.S. application publication of an International Application (IA)?
(look for “35 U.S.C. § 371” on the reference, which would indicate National Stage was entered)

Yes No

§ 371 Was the IA filed on or after Nov. 29, 2000? Is there an IA in the continuity chain for which a
(National
Stage)
- look at the international filing date benefit is properly sought via §§ 120 or 365(c)?

Yes No
Yes No No IA
involved

The reference was filed under § 111(a) and

only claims benefit to other U.S. applications
For a patent: § 102(e) date is
Was the WIPO filed under § 111(a) or (b) or does not make
the § 371(c)(1), (2) and (4) date
publication of the any benefit claims.
Form Paragraph 7.12.01
IA in English and The § 102(e) date of the reference is the
For a U.S. appl. publication:
earliest U.S. filing date for which a benefit is
did the IA no § 102(e) date properly sought via §§ 119(e) and/or 120 (do
designate the Reference is prior art as of its
not consider foreign priority claims under
publication date under § 102(a) or (b)
U.S.? Form Paragraph 7.08 or 7.09 §§ 119(a)-(d)). Form Paragraph 7.12
Yes No
Benefit claim to Was the IA filed on or after Nov. 29, 2000?
an IA (§§ 120 or
365(c)) - look at the international filing date
For a patent and a
U.S. application No
Yes
publication: § 102(e)
For a patent: § 102(e) date is the
date is the Was the WIPO publication § 371(c)(1), (2) and (4) date; or § 111(a)
international filing of the IA in English and filing date if the IA never entered national
date or an earlier did the IA designate the stage.
filing date for which U.S.? Form Paragraph 7.12.01
a benefit is properly No For a U.S. application publication: §
sought* Yes 102(e) date is the filing date of the U.S.
Form Paragraph 7.12 application that claimed benefit to the IA
Form Paragraph 7.12
For a patent and an
For a patent and a U.S. application publication:
application publication: no § 102(e) date is the
international filing For a patent and a U.S.
§ 102(e) date application publication:
Reference is prior art as of its date or an earlier date
publication or grant date under for which a benefit is § 102(e) date is the filing date
§ 102(a) or (b)
properly sought* of the U.S. application that
Form Paragraph 7.08 or 7.09 claimed benefit to the IA
Form Paragraph 7.12
Form Paragraph 7.12

* Consider benefit claims properly made under § 119(e) to U.S. provisional applications, § 120 to U.S.
nonprovisional applications, and § 365(c) involving IAs. Do NOT consider foreign priority claims.
 Page 2 of 2 Version 1.0 (Nov. 2002)

FLOWCHARTS FOR 35 U.S.C. § 102(e) DATES:

Apply to all applications and patents, whenever filed

Chart II: For WIPO publication of International Applications (IAs)

Was the IA filed on or after Nov. 29, 2000?

- look at the international filing date

Yes No

Was the WIPO no § 102(e) date

publication of the Reference is prior art as of its
IA in English and publication date under § 102(a) or
did the IA (b) no matter what the language of
designate the publication was.
Form Paragraph 7.08 or 7.09
U.S.?

Yes No

§ 102(e) date is the no § 102(e) date

international filing date Reference is prior art as of its
or an earlier filing date for publication date under
which a benefit is properly § 102(a) or (b) no matter what
sought* the language of publication
Form Paragraph 7.12 was.
Form Paragraph 7.08 or 7.09

* Consider benefit claims properly made under § 119(e) to U.S. provisional applications, § 120 to U.S.
nonprovisional applications, and § 365(c) involving IAs. Do NOT consider foreign priority claims.

Glossary of Terms:
U.S. patent application publication = pre-grant publication by the USPTO under 35 U.S.C. § 122(b)
International application (IA) = an application filed under the Patent Cooperation Treaty (PCT)
§ 371 application = an IA that has entered the national stage in the U.S. (35 U.S.C. § 371(c)(1), (2) and (4))
November 29, 2000 = the effective date for the amendments to §§ 102(e) and 374
WIPO = World Intellectual Property Organization
WIPO Publication = a publication of an IA under PCT Article 21(2) (e.g., Publication No. WO 99/12345)
§ 111(a) = provision of the patent code that states the filing requirements for nonprovisional applications
§ 111(b) = provision of the patent code that states the filing requirements for provisional applications
§ 119(e) = provision of the patent code that allows for priority claims to provisional applications
§ 119(a)-(d) = provision of the patent code that allows for priority claims to foreign applications
§ 120 = provision of the patent code that allows for benefit claims to nonprovisional applications
§ 365(c) = provision of the patent code that allows for benefit claims to international applications