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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 and Trademark Office except as otherwise provided in section 102(e) of this title.
Similarly, PCT Article 11(3) provides that
...an international filing date shall have the effect of a regular national application in each designated State as of the international filing date, which date shall be considered to be the actual filing date in each designated State.
37 CFR 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 **>receipt of 35 U.S.C. 371(c)(1), (c)(2) and (c)(4) requirements< 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 **>bibliographic data sheet< of national stage application number **>09/XXX,XXX< is shown with the >receipt of 35 U.S.C. 371(c)(1), (c)(2) and (c)(4) requirements< date **>(04/02/2001)< shown in the FILING DATE box and the true U.S. filing date **>(04/09/1999)< indicated just to the right of the international application number **>(PCT/EP99/XXXXX)< in the **>371 (NAT' L STAGE) DATA< block.
>Effective February 14, 2003, the "Application Filing Date" field displayed in PALM and PAIR will be changed to "Filing or 371(c) Date" to clearly indicate that for international applications that enter the national stage under 35 U.S.C. 371, the information displayed in this field is the date of receipt of the 35 U.S.C. 371(c)(1), (c)(2) and (c)(4) requirements.< 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 >most< legal purposes, the filing date is the PCT international filing date. >Exceptions to this general rule include the following:
(A) Availability as a prior art reference under former 35 U.S.C. 102(e) (prior to the amendment by the American Inventors Protection Act of 1999 (AIPA) (Pub. L. 106-113, 113 Stat. 1501 (1999)). If a U.S. patent issued from an international application filed prior to November 29, 2000, the international application was not considered to have been filed in the United States for prior art purposes under 35 U.S.C. 102(e) and PCT Article 64(4)(a) until the date the application fulfilled the requirements of 35 U.S.C. 371(c) (1), (2), and (4).
(B) Availability as a prior art reference under 35 U.S.C. 102(e) as amended by the AIPA, and further amended by the Intellectual Property and High Technology Technical Amendments Act of 2002 (Pub. L. 107-273, 116 Stat. 1758 (2002)). If an international application was filed on or after November 29, 2000, but did not designate the U.S. or was not published in English under PCT Article 21(2), the international filing date is not treated as a U.S. filing date for prior art purposes under 35 U.S.C. 102(e). See MPEP § 706.02(a) and § 2136.03.
(C) Patent term adjustment under 35 U.S.C. 154(b)(1)(B) and 37 CFR 1.702(b) when the USPTO has failed to issue a patent within three years of the "actual filing date" of an application. In this situation, the "actual filing date" is the date the national stage commenced under 35 U.S.C. 371(b) or (f). See MPEP § 2730.<
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