§ 365. Right of priority; benefit of the filing date of a prior application

Legislative history

Reconstructed from this section’s Code source credit and amendment notes, resolved against the local Statutes at Large. Editorial notes are evidence, not the law that made the change.

1. 1975

   Pub. L. 94–131 § 1 · 89 Stat. 685

   Enacted · 35 U.S.C. § 365

   Added Pub. L. 94–131, § 1, Nov. 14, 1975, 89 Stat. 686

   Source evidence

   Code source credit
   Added Pub. L. 94–131, § 1, Nov. 14, 1975, 89 Stat. 686

   Enacted provision · exact public law section
   “(1) the national fee prescribed under section 376(a) (4) of this part;

2. 1984

   Patent Law Amendments Act of 1984

   Pub. L. 98–622 title IV § 403(a) · 98 Stat. 3383

   Substituted · 35 U.S.C. § 365(c)

   Pub. L. 98–622 substituted “Patent and Trademark Office” for “Patent Office”

   Source evidence

   Code amendment note
   Subsec. (c). Pub. L. 98–622 substituted “Patent and Trademark Office” for “Patent Office”.

   Enacted provision · exact public law section
   (a) Title 35, United States Code, is amended by striking out “Patent Office” each place it appears and inserting in lieu thereof “Patent and Trademark Office”.

3. 1994

   Pub. L. 103–465 § 532(c)(4)(A) · 108 Stat. 4809

   Substituted · 35 U.S.C. § 365(a)

   Pub. L. 103–465, § 532(c)(4)(A), substituted “subsections (a) through (d) of section 119” for “section 119”

   Source evidence

   Code amendment note
   Subsec. (a). Pub. L. 103–465, § 532(c)(4)(A), substituted “subsections (a) through (d) of section 119” for “section 119”.

   Enacted provision · exact public law section
   (A) in subsection (a), by striking “section 119” and inserting “subsections (a) through (d) of section 119”; and

4. 1994

   Pub. L. 103–465 § 532(c)(4)(B) · 108 Stat. 4809

   Substituted · 35 U.S.C. § 365(b)

   Pub. L. 103–465, § 532(c)(4)(B), substituted “section 119(a)” for “the first paragraph of section 119”

   Source evidence

   Code amendment note
   Subsec. (b). Pub. L. 103–465, § 532(c)(4)(B), substituted “section 119(a)” for “the first paragraph of section 119”.

   Enacted provision · exact public law section
   (B) in subsection (b), by striking “the first paragraph of section 119” and inserting “section 119(a)”.

5. 1999

   District of Columbia Appropriations Act, 2000

   Pub. L. 106–113 div. B § 1000(a)(9)(tIV)(s4732)(a)(10)(A) · 113 Stat. 1501

   1. Amended · 35 U.S.C. § 365(c)

      Pub. L. 106–113, as amended by Pub. L. 107–273

   2. Substituted · 35 U.S.C. § 365(c)

      Pub. L. 106–113, as substituted “Director” for “Commissioner”

   Source evidence

   Code amendment note
   Subsec. (c). Pub. L. 106–113, as amended by Pub. L. 107–273, substituted “Director” for “Commissioner”.

6. 2002

   Intellectual Property and High Technology Technical Amendments Act of 2002

   Pub. L. 107–273 div. C title III § 13206(b)(1)(B) · 116 Stat. 1758

   Changed · 35 U.S.C. § 365(c)

   Pub. L. 107–273 made technical correction to directory language of Pub. L. 106–113. See 1999 Amendment note below

   Source evidence

   Code amendment note
   Subsec. (c). Pub. L. 107–273 made technical correction to directory language of Pub. L. 106–113. See 1999 Amendment note below.

   Enacted provision · exact public law section
   (B) in paragraph (10)(A), by inserting after “title 35, United States Code,” the following: “other than sections 1 through 6 (as amended by chapter 1 of this subtitle),”.

7. 2011

   Pub. L. 112–29 § 20(j) · 125 Stat. 335

   Struck · 35 U.S.C. § 365(a)

   Pub. L. 112–29 struck out “of this title” after “119”

   Source evidence

   Code amendment note
   Subsec. (a). Pub. L. 112–29 struck out “of this title” after “119”.

   Enacted provision · exact public law section
   (j) Unnecessary References.— (1) In general.— Title 35, 35 USC 2, 12, 32, 41, 103, 104, 111, 119–123, 132, 135, 143, 145, 146, 154, 157, 162, 172, 182–186, 207, 210, 257, 267. United States Code, is amended by striking “of this title” each place that term appears. (2) Exception.— The amendment made by paragraph (1) shall not apply to the use of such term in the following sections of title 35, United States Code: (A) Section 1(c). (B) Section 101. (C) Subsections (a) and (b) of section 105. (D) The first instance of the use of such term in section 111(b)(8). (E) Section 161. (F) Section 164. (G) Section 171. (H) Section 251(c), as so designated by this section. (I) Section 261. (J) Subsections (g) and (h) of section 271. (K) Section 287(b)(1). (L) Section 289. (M) The first instance of the use of such term in section 375(a).

8. 2011

   Pub. L. 112–29 § 20(j) · 125 Stat. 335

   Struck · 35 U.S.C. § 365(b)

   Pub. L. 112–29 struck out “of this title” after “119(a)”

   Source evidence

   Code amendment note
   Subsec. (b). Pub. L. 112–29 struck out “of this title” after “119(a)”.

   Enacted provision · exact public law section
   (j) Unnecessary References.— (1) In general.— Title 35, 35 USC 2, 12, 32, 41, 103, 104, 111, 119–123, 132, 135, 143, 145, 146, 154, 157, 162, 172, 182–186, 207, 210, 257, 267. United States Code, is amended by striking “of this title” each place that term appears. (2) Exception.— The amendment made by paragraph (1) shall not apply to the use of such term in the following sections of title 35, United States Code: (A) Section 1(c). (B) Section 101. (C) Subsections (a) and (b) of section 105. (D) The first instance of the use of such term in section 111(b)(8). (E) Section 161. (F) Section 164. (G) Section 171. (H) Section 251(c), as so designated by this section. (I) Section 261. (J) Subsections (g) and (h) of section 271. (K) Section 287(b)(1). (L) Section 289. (M) The first instance of the use of such term in section 375(a).

9. 2011

   Pub. L. 112–29 § 20(j) · 125 Stat. 335

   Struck · 35 U.S.C. § 365(c)

   Pub. L. 112–29 struck out “of this title” after “120”

   Source evidence

   Code amendment note
   Subsec. (c). Pub. L. 112–29 struck out “of this title” after “120”.

   Enacted provision · exact public law section
   (j) Unnecessary References.— (1) In general.— Title 35, 35 USC 2, 12, 32, 41, 103, 104, 111, 119–123, 132, 135, 143, 145, 146, 154, 157, 162, 172, 182–186, 207, 210, 257, 267. United States Code, is amended by striking “of this title” each place that term appears. (2) Exception.— The amendment made by paragraph (1) shall not apply to the use of such term in the following sections of title 35, United States Code: (A) Section 1(c). (B) Section 101. (C) Subsections (a) and (b) of section 105. (D) The first instance of the use of such term in section 111(b)(8). (E) Section 161. (F) Section 164. (G) Section 171. (H) Section 251(c), as so designated by this section. (I) Section 261. (J) Subsections (g) and (h) of section 271. (K) Section 287(b)(1). (L) Section 289. (M) The first instance of the use of such term in section 375(a).

10. 2012

    Patent Law Treaties Implementation Act of 2012

    Pub. L. 112–211 § 201(c)(2) · 126 Stat. 1527

    Inserted · 35 U.S.C. § 365(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.”

    Source evidence

    Code amendment note
    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.”

    Enacted provision · exact public law section
    (2) in section 365(b), by adding at the end the following: “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.”.

    Effective date note
    Amendment 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.

11. 2012

    Patent Law Treaties Implementation Act of 2012

    Pub. L. 112–211 § 102(8) · 126 Stat. 1527

    1. Substituted · 35 U.S.C. § 365(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”

    2. Inserted · 35 U.S.C. § 365(c)

       Pub. L. 112–211, § 102(8), 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”

    Source evidence

    Code amendment note
    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”.

    Enacted provision · exact public law section
    (8) in section 365(c)— (A) in the first sentence, by striking “or a prior international application designating the United States” and inserting “, 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 (B) in the second sentence, by inserting “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”; and

    Effective date note
    Amendment 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.

11 of 13 references resolved to an enrolled provision · 2 partial