Appeal 2006-1776
Application 10/075,976
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 payment of a surcharge, to accept an
unintentionally delayed submission of an amendment under this
section. [Emphasis added.]
Section 102(e) was amended by the American Inventors Protection Act of 1999
(AIPA) (Pub. L. 106-113, 113 Stat. 1501 (1999)), and was further amended by the
Intellectual Property and High Technology Technical Amendments Act of 2002
(Pub. L. 107-273, 116 Stat. 1758 (2002)). The AIPA contained a number of
changes to title 35, including provisions for the publication of pending applications
for patent, with certain exceptions, promptly after the expiration of a period of
eighteen months from the earliest filing date for which a benefit is sought under
title 35 (“eighteen-month publication”). See 35 U.S.C. 122(b). The eighteen-
month publication provisions of the AIPA became effective on November 29,
2000, and apply to all applications filed on or after November 29, 2000. See Pub.
L. 106-113, 113 Stat. at 1501A-566 through 1501A-567. The USPTO
implemented the eighteen-month publication provisions of the AIPA and began
publishing, for the first time, patent applications filed on or after November 29,
2000 eighteen months after the effective filing date of the application.
U.S. patent applications published under 35 U.S.C. 122(b) are given prior art
effect under 35 U.S.C. 102(e) as of its earliest effective U.S. filing date against any
subsequently filed U.S. applications (with certain exceptions for international
applications). See 145 Cong. Rec. S14,708, S14,719 (daily ed. Nov. 17, 1999)
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