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All Questions in Patent Process >> Swear behind 102(e) reference. When is the date of entry?

Swear behind 102(e) reference. When is the date of entry?

Posted by Anonymous . updated on 2/26/2009
I have a situation with a patent application.  I got a 102(e) rejection and plan to swear behind with a 1.131 declaration.  According to the statute, a 102(e) reference's priority date is the US filing date, not the foreign priority date.  Here's the complication, according to MPEP 2138.06, "the date of entry by a first reducer is dependent upon what is being relied on by the first reducer ... an actual reduction to practice or a constructive reduction to practice by filing of either a U.S. application ... or reliance upon priority under 35 U.S.C. 119 of a foreign application (Justus v. Appenzeller, 177 USPQ 332, 339 (Bd. Pat. Inter. 1971)." 

My question is which date I need to swear behind a 102(e) reference which claims priority to a foreign application? Is it the US filing or the 119 priority date? According to MPEP 2138.06, my client needs to show diligence from conception date to the date just prior to the date the first reducer entered the field by filing a foreign application. 

Thanks for any pointer. 

Answers (1)
 
Isaac
The section you are looking at is applicable to interferences under 102(g).   For 102(a) and 102(e), you don't have to worry about a foreign filing date of the reference.

 
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