35 USC § 120 - Benefit of earlier filing date in the United States

There are 2 Updates Pending. Select the tab below to view.

An application for patent for an invention disclosed in the manner provided by section 112 (a) (other than the requirement to disclose the best mode) in an application previously filed in the United States, or as provided by section 363 of this title, which is filed by an inventor or inventors named in the previously filed application shall have the same effect, as to such invention, as though filed on the date of the prior application, if filed before the patenting or abandonment of or termination of proceedings on the first application or on an application similarly entitled to the benefit of the filing date of the first application and if it contains or is amended to contain a specific reference to the earlier filed application. No application shall be entitled to the benefit of an earlier filed application under this section unless an amendment containing the specific reference to the earlier filed application is submitted at such time during the pendency of the application as required by the Director. The Director may consider the failure to submit such an amendment within that time period as a waiver of any benefit under this section. The Director may establish procedures, including the payment of a surcharge, to accept an unintentionally delayed submission of an amendment under this section.

Source

(July 19, 1952, ch. 950, 66 Stat. 800; Pub. L. 94–131, § 9,Nov. 14, 1975, 89 Stat. 691; Pub. L. 98–622, title I, § 104(b),Nov. 8, 1984, 98 Stat. 3385; Pub. L. 106–113, div. B, § 1000(a)(9) [title IV, § 4503(b)(1)], Nov. 29, 1999, 113 Stat. 1536, 1501A–563; Pub. L. 112–29, §§ 3(f), 15(b), 20(j),Sept. 16, 2011, 125 Stat. 288, 328, 335.)

Amendment of Section

Pub. L. 112–29, § 20(j), (l),Sept. 16, 2011, 125 Stat. 335, provided that, effective upon the expiration of the 1-year period beginning on Sept. 16, 2011, and applicable to proceedings commenced on or after that effective date, this section is amended by striking “of this title” each place that term appears. See 2011 Amendment note below. Pub. L. 112–29, § 3(f), (n),Sept. 16, 2011, 125 Stat. 288, 293, provided that, effective upon the expiration of the 18-month period beginning on Sept. 16, 2011, and applicable to certain applications for patent and any patents issuing thereon, this section is amended by striking “which is filed by an inventor or inventors named” and inserting “which names an inventor or joint inventor”. See 2011 Amendment note below.

Historical and Revision Notes

This section represents present law not expressed in the statute, except for the added requirement that the first application must be specifically mentioned in the second.

Amendments

2011—Pub. L. 112–29, § 20(j), struck out “of this title” after “363”.

Pub. L. 112–29, § 15(b), substituted “section 112 (a) (other than the requirement to disclose the best mode)” for “the first paragraph of section 112 of this title”.

Pub. L. 112–29, § 3(f), substituted “which names an inventor or joint inventor” for “which is filed by an inventor or inventors named”.

1999—Pub. L. 106–113inserted at end “No application shall be entitled to the benefit of an earlier filed application under this section unless an amendment containing the specific reference to the earlier filed application is submitted at such time during the pendency of the application as required by the Director. The Director may consider the failure to submit such an amendment within that time period as a waiver of any benefit under this section. The Director may establish procedures, including the payment of a surcharge, to accept an unintentionally delayed submission of an amendment under this section.”

1984—Pub. L. 98–622substituted “which is filed by an inventor or inventors named in the previously filed application” for “by the same inventor”.

1975—Pub. L. 94–131inserted “, or as provided by section 363 of this title,” after “filed in the United States”.

Effective Date of 2011 Amendment

Amendment by section 3(f) ofPub. L. 112–29effective upon the expiration of the 18-month period beginning on Sept. 16, 2011, and applicable to certain applications for patent and any patents issuing thereon, see section 3(n) ofPub. L. 112–29, set out as an Effective Date of 2011 Amendment; Savings Provisions note under section 100 of this title.

Amendment by section 15(b) ofPub. L. 112–29effective on Sept. 16, 2011, and applicable to proceedings commenced on or after that date, see section 15(c) ofPub. L. 112–29, set out as a note under section 119 of this title.

Amendment by section 20(j) ofPub. L. 112–29effective upon the expiration of the 1-year period beginning on Sept. 16, 2011, and applicable to proceedings commenced on or after that effective date, see section 20(l) ofPub. L. 112–29, set out as a note under section 2 of this title.

Effective Date of 1999 Amendment

Amendment by Pub. L. 106–113effective Nov. 29, 2000, and applicable only to applications (including international applications designating the United States) filed on or after that date, see section 1000(a)(9) [title IV, § 4508] of Pub. L. 106–113, as amended, set out as a note under section 10 of this title.

Effective Date of 1984 Amendment

Amendment by Pub. L. 98–622applicable to all United States patents granted before, on, or after Nov. 8, 1984, and to all applications for United States patents pending on or filed after that date, except as otherwise provided, see section 106 ofPub. L. 98–622, set out as a note under section 103 of this title.

Effective Date of 1975 Amendment

Amendment by Pub. L. 94–131effective Jan. 24, 1978, and applicable on and after that date to patent applications filed in the United States and to international applications, where applicable, see section 11 ofPub. L. 94–131, set out as an Effective Date note under section 351 of this title.

The table below lists the classification updates, since Jan. 3, 2012, for this section. Updates to a broader range of sections may be found at the update page for containing chapter, title, etc.

The most recent Classification Table update that we have noticed was Wednesday, December 26, 2012

An empty table indicates that we see no relevant changes listed in the classification tables. If you suspect that our system may be missing something, please double-check with the Office of the Law Revision Counsel.

How To Use

Multiple entries for a section are listed most recent first, within the section.

The Session Year indicates which session of Congress was responsible for the changes classified. The Congress number forms the first part of the Public Law number; each Congress has two sessions.

Abbreviations used in the Description of Change column:

An empty field implies a standard amendment.
"new" means a new section or new note, or all new text of an existing section or note.
"nt" means note.
"nt [tbl]" means note [table].
"prec" means preceding.
"fr" means a transfer from another section.
"to" means a transfer to another section.
"omitted" means the section is omitted.
"repealed" means the section is repealed.
"nt ed change" and "ed change" - See the Editorial Classification Change Table [pdf].

The Public Law field is linked to the development of the law in the Thomas system at the Library of Congress.

The Statutes at Large field is linked to the text of the law, in the context of its volume of the Statutes at Large, at the Government Printing Office. Please note that it takes a while for these pages to get posted, so for very recent legislation, you need to look at the "enrolled" version at the Thomas site.

The Statutes at Large references have been rendered in the format used as page numbers in the Public Law web pages to which we link, to facilitate copy-paste into browser "find on this (web) page" tools. We are still working on a more direct link facility.

For serious comparison work, we suggest copying all or a portion of the Public Law text into your favorite text editor, for convenient content traversal and window control.

Sections with change type "new" are a special case, still under development. All are now listed, at the title level only.

You will find that occassionally a specific update you notice in a Public Law listed in a classification table will already have made it into the Code. We assume this is an artifact of the LRC edit process. The LII does not edit the LRC content.

top

General Reference

Refer to the LRC (Law Revision Council) for explanations about the US Code from the folks who put it all together.

You can look for information about what it is and is not, which titles are positive law, the schedule of Supplements, etc. Under download you can find the source data we use here (GPO locator files), as well as, PDF files that look just like the paper books (these may be rather large).

Refer to the Thomas site for changes that have not yet made it into the classification tables.

35 USC	Description of Change	Session Year	Public Law	Statutes at Large
§ 120		2012	112-211 [Sec.] 202(b)(3)	126 Stat. 1536
§ 120		2012	112-211 [Sec.] 102(5)	126 Stat. 1531

LII has no control over and does not endorse any external Internet site that contains links to or references LII.

35 USC § 120 - Benefit of earlier filing date in the United States

U.S. Code Toolbox

Law about... Articles from Wex

Find a Lawyer

Get Involved