Title 35 — PatentsRelease 119-73
§365 Right of priority; benefit of the filing date of a prior application
Title 35 › Part PART IV— - PATENT COOPERATION TREATY › Chapter CHAPTER 36— - INTERNATIONAL STAGE › § 365
Summary
A U.S. patent application can use the filing date of an earlier international or foreign application as its priority date if it follows the rules in section 119 (subsections (a)–(d)), section 120, and the applicable treaty and regulations. An international application that named at least one country other than the United States can give a national application that earlier filing date. An international application that named the United States can claim priority to an earlier foreign or international filing. The Patent Office Director can set procedures, and may require the fee listed in section 41(a)(7), to accept an unintentionally late priority claim or one filed within the extra 2-month period allowed under section 119(a) or the treaty and rules. If the earlier application named but did not start in the U.S., the Director may ask for a certified copy and an English translation if it was filed in another language.
Full Legal Text
Title 35, §365
Patents — Source: USLM XML via OLRC
(a)In accordance with the conditions and requirements of subsections (a) through (d) of section 119, a national application shall be entitled to the right of priority based on a prior filed international application which designated at least one country other than the United States.
(b)In accordance with the conditions and requirement of section 119(a) and the treaty and the Regulations, an international application designating the United States shall be entitled to the right of priority based on a prior foreign application, or a prior international application designating at least one country other than the United States. The Director may establish procedures, including the requirement for payment of the fee specified in section 41(a)(7), to accept an unintentionally delayed claim for priority under the treaty and the Regulations, and to accept a priority claim that pertains to an application that was not filed within the priority period specified in the treaty and Regulations, but was filed within the additional 2-month period specified under section 119(a) or the treaty and Regulations.
(c)In accordance with the conditions and requirements of section 120, an international application designating the United States shall be entitled to the benefit of the filing date of a prior national application, a prior international application designating the United States, or a prior international design application as defined in section 381(a)(6) designating the United States, and a national application shall be entitled to the benefit of the filing date of a prior international application designating the United States. If any claim for the benefit of an earlier filing date is based on a prior international application which designated but did not originate in the United States or a prior international design application as defined in section 381(a)(6) which designated but did not originate in the United States, the Director may require the filing in the Patent and Trademark Office of a certified copy of such application together with a translation thereof into the English language, if it was filed in another language.
Legislative History
Notes & Related Subsidiaries
Editorial Notes
Amendments
2012—Subsec. (b). Pub. L. 112–211, § 201(c)(2), inserted at end “The Director may establish procedures, including the requirement for payment of the fee specified in section 41(a)(7), to accept an unintentionally delayed claim for priority under the treaty and the
Regulations
, and to accept a priority claim that pertains to an application that was not filed within the priority period specified in the treaty and
Regulations
, but was filed within the additional 2-month period specified under section 119(a) or the treaty and
Regulations
.” Subsec. (c). Pub. L. 112–211, § 102(8), substituted “, a prior international application designating the United States, or a prior international design application as defined in section 381(a)(6) designating the United States” for “or a prior international application designating the United States” and inserted “or a prior international design application as defined in section 381(a)(6) which designated but did not originate in the United States” after “did not originate in the United States”. 2011—Subsec. (a). Pub. L. 112–29 struck out “of this title” after “119”. Subsec. (b). Pub. L. 112–29 struck out “of this title” after “119(a)”. Subsec. (c). Pub. L. 112–29 struck out “of this title” after “120”. 2002—Subsec. (c). Pub. L. 107–273 made technical correction to directory language of Pub. L. 106–113. See 1999 Amendment note below. 1999—Subsec. (c). Pub. L. 106–113, as amended by Pub. L. 107–273, substituted “Director” for “Commissioner”. 1994—Subsec. (a). Pub. L. 103–465, § 532(c)(4)(A), substituted “subsections (a) through (d) of section 119” for “section 119”. Subsec. (b). Pub. L. 103–465, § 532(c)(4)(B), substituted “section 119(a)” for “the first paragraph of section 119”. 1984—Subsec. (c). Pub. L. 98–622 substituted “Patent and Trademark Office” for “Patent Office”.
Statutory Notes and Related Subsidiaries
Effective Date
of 2012 AmendmentAmendment by section 102(8) of Pub. L. 112–211 effective on the later of the date that is 1 year after Dec. 18, 2012, or the date that the Geneva Act of the Hague Agreement Concerning the International Registration of Industrial Designs enters into force with respect to the United States (May 13, 2015), and applicable only to certain applications filed on and after that
Effective Date
and patents issuing thereon, see section 103 of Pub. L. 112–211, set out as a note under section 100 of this title. Amendment by section 201(c)(2) of Pub. L. 112–211 effective on the date that is 1 year after Dec. 18, 2012, applicable to patents issued before, on, or after that
Effective Date
and patent applications pending on or filed after that
Effective Date
, and not effective with respect to patents in litigation commenced before that
Effective Date
, see section 203 of Pub. L. 112–211, set out as an
Effective Date
note under section 27 of this title.
Effective Date
of 2011 AmendmentAmendment by Pub. L. 112–29 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
, see section 20(l) of Pub. L. 112–29, set out as a note under section 2 of this title.
Effective Date
of 1999 AmendmentAmendment by Pub. L. 106–113 effective 4 months after Nov. 29, 1999, see section 1000(a)(9) [title IV, § 4731] of Pub. L. 106–113, set out as a note under section 1 of this title.
Effective Date
of 1994 AmendmentAmendment by Pub. L. 103–465 effective 6 months after Dec. 8, 1994, and applicable to all patent applications filed in the United States on or after that
Effective Date
, with provisions relating to earliest filed patent application, see section 534(b)(1), (3) of Pub. L. 103–465, set out as a note under section 154 of this title.
Effective Date
of 1984 AmendmentAmendment by Pub. L. 98–622 effective Nov. 8, 1984, see section 406(a) of Pub. L. 98–622, set out as a note under section 351 of this title.
Effective Date
Section effective Jan. 24, 1978, and applicable to international and national applications filed on and after that date, see section 11 of Pub. L. 94–131, set out as a note under section 351 of this title.
Reference
Citations & Metadata
Citation
35 U.S.C. § 365
Title 35 — Patents
Last Updated
Apr 6, 2026
Release point: 119-73