214.01 Time for Filing Priority Claim [R-07.2015]

37 CFR 1.55(d)(1) sets forth the time periods for filing a priority claim in an application filed under 35 U.S.C. 111(a). See 37 CFR 1.55(d)(2) and MPEP § 213.06 for the time period for claiming priority in an application entering the national stage. The time periods set forth in 37 CFR 1.55(d) do not apply to design applications.

For original applications filed under 35 U.S.C. 111(a), the requirements of the statute are that the applicant must (a) file a claim for the right of priority and (b) identify the original foreign application by specifying the application number of the foreign application, the intellectual property authority or country in which the application was filed and the date of filing of the application. 35 U.S.C. 119(b)(1) specifies that the claim for priority and the required identification information must be filed at such time during the pendency of the application as set by the Director. For applications other than design applications, the Director has by rule set this time period as the later of four months from the actual filing date of the application or sixteen months from the filing date of the prior foreign application. See 37 CFR 1.55(d)(1). This time period is not extendable. In an application that entered the national stage from an international application after compliance with 35 U.S.C. 371, the claim for priority must be made during the pendency of the application and within the time limit set forth in the PCT and the Regulations under the PCT. See 37 CFR 1.55(d)(2) and MPEP § 213.06. In a design application, a claim for priority may be made at any time during the pendency of the application. See 37 CFR 1.55(g). See also MPEP §§ 1504.10 and 2920.05(d) for additional information pertaining to priority claims in design applications.

Claims for foreign priority not presented within the time period specified in 37 CFR 1.55 are considered to have been waived. If a claim for priority under 35 U.S.C. 119(a) – (d) or (f), 365(a) or (b), or 386(a) or (b) is presented after the time period set in 37 CFR 1.55, the claim may be accepted if it includes the required identification information and is accompanied by a grantable petition to accept the unintentionally delayed claim for priority. See MPEP § 214.02 for the treatment of unintentionally delayed priority claims.

For applications filed under 35 U.S.C. 111(a) on or after September 16, 2012, 37 CFR 1.55(d)(1) requires the claim for priority to be presented in an application data sheet. For applications filed under 35 U.S.C. 111(a) prior to September 16, 2012, unless provided in an application data sheet, the oath or declaration under 37 CFR 1.63 must identify the foreign application for patent or inventor’s certificate for which priority is claimed under 37 CFR 1.55, and any foreign applications having a filing date before that of the application on which priority is claimed, by specifying the application number, country, day, month, and year of its filing. See 37 CFR 1.55(n).