Title 35, PatentsRelease 119-102
§120 Benefit of Earlier Filing Date in the United States
Title 35 › PART II — PATENTABILITY OF INVENTIONS AND GRANT OF PATENTS › CHAPTER 11 — APPLICATION FOR PATENT › § 120
Summary
A later U.S. patent application can use the filing date of an earlier application (U.S. or under 363 or 385) if the earlier one described the invention under 112(a) (except best mode), named the inventor(s), and the later application was filed before the first was patented, abandoned, or its proceedings ended. The later application must include, or be amended to add, a specific reference to the earlier application while pending as the Director requires. Missing that can be treated as a waiver, and the Director may allow an unintentional late reference and require the fee in 41(a)(7).
Full Legal Text
Title 35, §120
Patents, Source: USLM XML via OLRC
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 or 385, which names an inventor or joint inventor 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 requirement for payment of the fee specified in section 41(a)(7), to accept an unintentionally delayed submission of an amendment under this section.
Legislative History
Notes & Related Subsidiaries
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.
Editorial Notes
Amendments
2012—Pub. L. 112–211, § 202(b)(3), substituted “including the requirement for payment of the fee specified in section 41(a)(7)” for “including the payment of a surcharge”. Pub. L. 112–211, § 102(5), substituted “section 363 or 385” for “section 363”. 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. 106–113 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”.
Statutory Notes and Related Subsidiaries
Effective Date
of 2012 AmendmentAmendment by section 102(5) 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 202(b)(3) 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 section 3(f) of Pub. L. 112–29 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, see section 3(n) of Pub. L. 112–29, set out as an
Effective Date
of 2011 Amendment;
Savings Provision
s note under section 100 of this title. Amendment by section 15(b) of Pub. L. 112–29 effective on Sept. 16, 2011, and applicable to proceedings commenced on or after that date, see section 15(c) of Pub. L. 112–29, set out as a note under section 119 of this title. Amendment by section 20(j) of 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 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 AmendmentAmendment 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 AmendmentAmendment 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.
Reference
Citations & Metadata
Citation
35 U.S.C. § 120
Title 35, Patents
Last Updated
Aug 21, 2026
Release point: 119-102