§120. Benefit of earlier filing date in the United States

An application for patent for an invention disclosed in the manner provided by the first paragraph of section 112 of this title 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.

(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.)

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

1999-Pub. L. 106–113 inserted 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. 98–622 substituted "which is filed by an inventor or inventors named in the previously filed application" for "by the same inventor".

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

Effective Date of 1999 Amendment

Amendment by Pub. L. 106–113 effective on date that is 1 year after Nov. 29, 1999, and applicable to all applications filed under section 111 of this title on or after that date, and all applications complying with section 371 of this title that resulted from international applications filed on or after that date, see section 1000(a)(9) [title IV, §4508] of Pub. L. 106–113, set out as a note under section 10 of this title.

Effective Date of 1984 Amendment

Amendment by Pub. L. 98–622 applicable 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 of Pub. L. 98–622, set out as a note under section 103 of this title.

Effective Date of 1975 Amendment

Amendment by Pub. L. 94–131 effective 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 of Pub. L. 94–131, set out as an Effective Date note under section 351 of this title.

Cross References

Specification, see section 112 of this title.

Section Referred to in Other Sections

This section is referred to in sections 111, 121, 154, 273, 365, 373 of this title.