# MPEP § 1893.03(c): The Priority Date, Priority Claim, and Priority Papers for a U.S. National Stage Application

> Federal · Agency guidance · In force

URL: https://www.frixlaw.com/law-library/statutes/MPEP_S1893.03(c)

## Section

- **Citation:** MPEP § 1893.03(c)
- **Heading:** The Priority Date, Priority Claim, and Priority Papers for a U.S. National Stage Application
- **Jurisdiction:** Federal
- **Kind:** Agency guidance
- **Status:** In force
- **Text as of:** August 14, 2026
- **Source:** Compiled text
- **Location:** USPTO MPEP / Chapter 1800 - Patent Cooperation Treaty / MPEP § 1893.03(c)

## Text

A U.S. national stage application may be entitled to: (A) a
right of priority under
35 U.S.C. 119(a)
and
365(b)
based on a prior foreign application or
international application designating at least one country other than the United
States; and (B) the benefit of an earlier filed U.S. national application or
international application designating the United States pursuant to
35 U.S.C.
119(e)
or
35 U.S.C. 120
and
365(c)
.
I.
RIGHT OF PRIORITY UNDER 35 U.S.C. 119(a) and 365(b)
Pursuant to
35 U.S.C. 365(b)
a U.S.
national stage application shall be entitled to a right of priority based on
a prior foreign application or international application designating at
least one country other than the United States in accordance with the
conditions and requirements of
35 U.S.C. 119(a)
and
the treaty and the PCT regulations. See in particular
PCT Article
8
and
PCT Rules 4.10
and
26bis
. To obtain priority in
the U.S. national stage application to such applications, the priority must
have been timely claimed in the international stage of the international
application. See
37 CFR 1.55(d)(2)
. In
the event that a claim of foreign priority is not timely made in the
international stage, the priority claim may be made in the U.S. national
stage application upon petition under
37 CFR
1.55(e)
, if the entire delay between the date the
priority claim was due under
PCT Rule
26bis
and the date the claim is
filed is unintentional.
Note that in U.S. national stage applications
it is permissible, but not required, to present the claim for priority in an
application data sheet. A proper claim for priority will be acknowledged
(subject to the paragraph below) and the national stage application file
will then be checked to see if the file contains a copy of the certified
copy of the priority document submitted to the International Bureau. See
subsection II below for further information concerning the certified copy of
the priority document
ity in an
application data sheet. A proper claim for priority will be acknowledged
(subject to the paragraph below) and the national stage application file
will then be checked to see if the file contains a copy of the certified
copy of the priority document submitted to the International Bureau. See
subsection II below for further information concerning the certified copy of
the priority document.
International applications filed on or after April 1, 2007
are subject to amended PCT Rules permitting restoration of a right of
priority. See
MPEP § 1828.01
. Consequently, international
applications filed on or after April 1, 2007 may claim priority to a foreign
application filed more than 12 months before the filing date of the
international application. Such a priority claim will be effective in the
U.S. national stage if the right of priority has been restored under
PCT
Rule 26bis.3
during the
international stage. See
37 CFR 1.55(c)
.
Furthermore, the right of priority may be restored in a U.S.
national stage application upon petition under
37 CFR
1.55(c)
. Restoration of the right of priority upon
petition under
37 CFR 1.55(c)
is not
limited to applications having an international filing date of April 1, 2007
or later. It should be noted that where a petition under
37 CFR
1.55(c)
is necessary to restore the right of priority
in a U.S. national stage application, a petition under
37 CFR
1.55(e)
to add a delayed priority claim will also be
required where the priority claim was not properly made within the time
limit set forth in the PCT and the Regulations under the PCT.
37 CFR 1.55(d)(2)
.
For a comparison with
35 U.S.C. 119(a) - (d)
priority claims in a national application filed under
35 U.S.C.
111(a)
, see
MPEP § 1895.01
.
II
national stage application, a petition under
37 CFR
1.55(e)
to add a delayed priority claim will also be
required where the priority claim was not properly made within the time
limit set forth in the PCT and the Regulations under the PCT.
37 CFR 1.55(d)(2)
.
For a comparison with
35 U.S.C. 119(a) - (d)
priority claims in a national application filed under
35 U.S.C.
111(a)
, see
MPEP § 1895.01
.
II.
THE CERTIFIED COPY
The requirement in
PCT Rule 17
for a
certified copy of the foreign priority application is normally fulfilled by
applicant providing a certified copy to the receiving Office or to the
International Bureau, or by applicant requesting the receiving Office to
prepare and transmit the priority document to the International Bureau if
the receiving Office issued the priority document, or by applicant
requesting the International Bureau to obtain the priority document from a
digital library. Pursuant to
PCT Rule 17.1(a)
,
(b)
or
(b-bis)
, applicant must submit
the certified copy, request the receiving Office to prepare and transmit the
certified copy or request the International Bureau to obtain the priority
document from a digital library, within 16 months from the priority date.
Where applicant has complied with
PCT Rule 17
, the
International Bureau will forward a copy of the certified priority document
to each Designated Office that has requested such document with an
indication that the priority document was submitted in compliance with the
rule and the date the document was received by the International Bureau.
This indication may be in the form of either a cover sheet attached to the
copy of the priority document or a WIPO stamp on the face of the certified
copy. The U.S. Patent and Trademark Office, as a Designated Office, will
normally request the International Bureau to furnish the copy of the
certified priority document upon receipt of applicant’s submission under
35
U.S.C. 371
to enter the U.S. national phase. The copy
from the International Bureau is placed in the U.S. national stage file
ty document or a WIPO stamp on the face of the certified
copy. The U.S. Patent and Trademark Office, as a Designated Office, will
normally request the International Bureau to furnish the copy of the
certified priority document upon receipt of applicant’s submission under
35
U.S.C. 371
to enter the U.S. national phase. The copy
from the International Bureau is placed in the U.S. national stage file. The
copy of the priority document received from the International Bureau with
either of the indications above is acceptable to establish that applicant
has filed a certified copy of the priority document in compliance with
37 CFR 1.55(f)
. The
examiner should acknowledge in the next Office action that the copy of the
certified copy of the foreign priority document has been received in the
national stage application from the International Bureau.
On the following pages, note the examples of acceptable
indications in the form of:
(A) a cover sheet indicating receipt by the
International Bureau on 12 April 2018 (12.04.2018) and compliance
with
PCT Rule
17.1(a)
,
(b)
or
(b-bis)
in the “Remark”
section; and
(B) the stamp (box) in the upper right hand section
indicating receipt by the International Bureau (WIPO) on 30 December
2002 and the stamped indication "PRIORITY DOCUMENT SUBMITTED OR
TRANSMITTED IN COMPLIANCE WITH RULE 17.1(a) OR (b)."
If the International Bureau is unable to forward a copy of
the certified priority document to the U.S. Patent and Trademark Office,
then applicant must provide a certified copy of the priority document during
the national stage, unless the requirements of
37 CFR
1.55(h)
or
37 CFR
1.55(i)
have been met. For international applications
in which the U.S. national stage commenced under
35 U.S.C.
371
on or after December 18, 2013, applicant must
submit the certified copy within the later of four months from the date of
entry into the U.S. national stage as set forth in
37 CFR
1.491
or sixteen months from the filing date of the
prior-filed foreign application. See
37 CFR
1.55(f)(2)
5(i)
have been met. For international applications
in which the U.S. national stage commenced under
35 U.S.C.
371
on or after December 18, 2013, applicant must
submit the certified copy within the later of four months from the date of
entry into the U.S. national stage as set forth in
37 CFR
1.491
or sixteen months from the filing date of the
prior-filed foreign application. See
37 CFR
1.55(f)(2)
. A delay in filing the certified copy
under
37 CFR 1.55(f)(2)
may
be excused upon petition under
37 CFR 1.55(f)(3)
. The
International Bureau may not forward a copy of the priority document because
the certified priority document was not furnished in compliance with
PCT
Rule 17.1(a)
,
(b)
or
(b-bis)
or applicant requested
examination to begin pursuant to
35 U.S.C. 371(f)
prior
to availability of the priority document from the International Bureau. If
the priority claim was not in accordance with
PCT Rule
4.10
or the priority document was not provided in
accordance with
PCT Rule 17.1(a)
,
(b)
or
(b-bis)
, the copy of the priority
document will not have been provided by the International Bureau. If a copy
of the foreign priority document is not in the national stage application
file but applicant asserts that a certified copy of the priority document
was timely furnished under
PCT Rule 17
in the
international phase, then the examiner should consult with a Quality
Assurance Specialist in his or her Technology Center or a PCT Special
Program Examiner.
III.
BENEFIT CLAIM UNDER 35 U.S.C. 119(e), OR 120 AND 365(c)
A national stage application may include a benefit claim
under
35
U.S.C. 119(e)
, or
120
and
365(c)
to a prior U.S.
national application or under
35 U.S.C. 120
and
365(c)
to a prior international application
designating the U.S. The conditions for according benefit under
35
U.S.C. 120
are as described in
MPEP
§§ 201.07
,
201.08
, and
211
et seq.
and are similar regardless of whether the U.S.
national application is a national stage application submitted under
35 U.S.C
119(e)
, or
120
and
365(c)
to a prior U.S.
national application or under
35 U.S.C. 120
and
365(c)
to a prior international application
designating the U.S. The conditions for according benefit under
35
U.S.C. 120
are as described in
MPEP
§§ 201.07
,
201.08
, and
211
et seq.
and are similar regardless of whether the U.S.
national application is a national stage application submitted under
35 U.S.C. 371
or a national application filed under
35 U.S.C. 111(a)
.
The conditions for according benefit of a provisional
application under
35  U.S.C. 119(e)
are
also similar for national stage applications and applications filed under
35
U.S.C. 111(a)
, and the conditions are described in
MPEP § 211.01(a)
.
In order for a national stage application (of international
application “X”) to obtain benefit under
35 U.S.C. 119(e)
of a
prior U.S. provisional application, the national stage application must
comply with the requirements set forth in
37 CFR
1.78(a)
.
37 CFR 1.78(a)(2)
requires that the prior provisional application must be entitled to a filing
date as set forth in
37 CFR 1.53(c)
, and the
basic filing fee set forth in
37 CFR 1.16(d)
must be
paid on the provisional application within the time period set forth in
37
CFR 1.53(g)
. Additionally, the provisional
application must name as an inventor at least one inventor named in the
later filed international application “X” and disclose the named inventor’s
invention claimed in at least one claim of the national stage application in
the manner provided by the first paragraph of
35 U.S.C.
112
. The national stage application must contain a
reference to the provisional application identifying it as a provisional
application, and including the provisional application number (series code
and serial number). If the national stage application has an international
filing date prior to September 16, 2012, then the reference must be in
either an application data sheet (
37 CFR 1.76
) or in the
first sentence(s) of the specification. See
pre-AIA 37 CFR
1.78(a)(5)(iii)
application identifying it as a provisional
application, and including the provisional application number (series code
and serial number). If the national stage application has an international
filing date prior to September 16, 2012, then the reference must be in
either an application data sheet (
37 CFR 1.76
) or in the
first sentence(s) of the specification. See
pre-AIA 37 CFR
1.78(a)(5)(iii)
. If the national stage application
has an international filing date that is on or after September 16, 2012,
then the reference must be in an application data sheet (
37 CFR
1.76
). See
37 CFR 1.78(a)(3)
.
However, the requirement for inclusion of the benefit claim in an
application data sheet will be satisfied in a U.S. national stage
application by the presentation of such benefit claim in the PCT request
form contained in the international application or the presence of such
benefit claim on the front page of the published international application.
See
37 CFR 1.76(g)
. The
required reference to the earlier provisional application must be submitted
within the time period provided by
37 CFR 1.78(a)(4)
. This
time period is not extendable. However, if the entire delay, between the
date the claim was due under
37 CFR 1.78(a)(4)
and
the date the claim was filed, was unintentional, a petition under
37
CFR 1.78(c)
may be filed to accept the delayed claim.
If the provisional application was filed in a language other than English,
an English-language translation of the non-English language provisional
application and a statement that the translation is accurate will be
required. See
MPEP § 211.01(a)
e under
37 CFR 1.78(a)(4)
and
the date the claim was filed, was unintentional, a petition under
37
CFR 1.78(c)
may be filed to accept the delayed claim.
If the provisional application was filed in a language other than English,
an English-language translation of the non-English language provisional
application and a statement that the translation is accurate will be
required. See
MPEP § 211.01(a)
. If the
translation and statement that the translation is accurate were not filed in
the provisional application or in the later-filed national stage application
before November 25, 2005, applicant will be notified and given a period of
time within which to file an English-language translation and a statement
that the translation is accurate in the provisional application, and a reply
in the national stage application that the translation and statement were
filed in the provisional application. Failure to timely reply to such a
notice will result in abandonment of the national stage application. See
37
CFR 1.78(a)(5)
.
Public Law 106-113 amended
35 U.S.C.
119(e)
to eliminate the copendency requirement for a
nonprovisional application claiming benefit of a provisional application.
35
U.S.C. 119(e)(2)
as amended became effective on
November 29, 1999 and applies to provisional applications filed on or after
June 8, 1995. An international application claiming benefit under
35
U.S.C. 365(c)
and
35 U.S.C. 119(e)
to a
prior filed provisional application must be filed within twelve months of
the filing date of the provisional application. The Director may extend the
twelve month statutory period by an additional two months in situations
where the failure to file the international application under
35
U.S.C. 363
was unintentional. See
35 U.S.C.
119(e)
.
International applications filed on or after
April 1, 2007 are subject to amended PCT Rules permitting restoration of a
right of priority. See
MPEP § 1828.01
rovisional application. The Director may extend the
twelve month statutory period by an additional two months in situations
where the failure to file the international application under
35
U.S.C. 363
was unintentional. See
35 U.S.C.
119(e)
.
International applications filed on or after
April 1, 2007 are subject to amended PCT Rules permitting restoration of a
right of priority. See
MPEP § 1828.01
.
Consequently, international applications filed on or after April 1, 2007 may
claim the benefit of a provisional application filed more than 12 months
before the filing date of the international application. Such a benefit
claim will be effective in the U.S. national stage if the benefit of the
provisional application has been restored under
PCT Rule
26bis.3
during the
international stage. See
37 CFR 1.78(b)
.
Furthermore, the benefit of a provisional
application may be restored in a U.S. national stage application upon
petition under
37 CFR 1.78(b)
.
Restoration of the benefit of a provisional application upon petition under
37 CFR 1.78(b)
is not
limited to applications having an international filing date of April 1, 2007
or later. It should be noted that where a petition under
37 CFR
1.78(b)
is necessary to restore the benefit of a
provisional application in a U.S. national stage application, a petition
under
37 CFR 1.78(c)
to add a delayed benefit claim will
also be required, unless the benefit claim was timely made under
37
CFR 1.78(a)(4)
(which includes,
inter
alia
, making the benefit claim during the international
stage).
In order for a national stage application (of international
application “X”) to obtain benefit under
35 U.S.C.
120
and
365(c)
of a prior filed
copending nonprovisional application or prior filed copending international
application designating the United States of America, the national stage
application must comply with the requirements set forth in
37 CFR
1.78(d)
during the international
stage).
In order for a national stage application (of international
application “X”) to obtain benefit under
35 U.S.C.
120
and
365(c)
of a prior filed
copending nonprovisional application or prior filed copending international
application designating the United States of America, the national stage
application must comply with the requirements set forth in
37 CFR
1.78(d)
. The prior nonprovisional application or
international application must name as an inventor at least one inventor
named in the later filed international application “X” and disclose the
named inventor’s invention claimed in at least one claim of the national
stage application in the manner provided by the first paragraph of
35
U.S.C. 112
. The national stage application must
contain a reference to the prior nonprovisional or international application
identifying it by application number (series code and serial number) or
international application number and international filing date and
indicating the relationship of the applications. If the national stage
application has an international filing date prior to September 16, 2012,
then the reference must be in either an application data sheet
(
37 CFR 1.76
) or in the first sentence(s) of the
specification. See
pre-AIA 37 CFR
1.78(a)(2)(iii)
. If national stage application has an
international filing date that is on or after September 16, 2012, then the
reference must be in an application data sheet (
37 CFR
1.76
). See
37 CFR
1.78(d)(2)
. However, the requirement for inclusion of
the benefit claim in an application data sheet will be satisfied in a U.S.
national stage application by the presentation of such benefit claim in the
PCT Request form contained in the international application or the presence
of such benefit claim on the front page of the published international
application. See
37 CFR 1.76(g)
. The
required reference to the earlier filed application must be submitted within
the time period set forth in
37 CFR 1.78(d)(3)
fied in a U.S.
national stage application by the presentation of such benefit claim in the
PCT Request form contained in the international application or the presence
of such benefit claim on the front page of the published international
application. See
37 CFR 1.76(g)
. The
required reference to the earlier filed application must be submitted within
the time period set forth in
37 CFR 1.78(d)(3)
. This
time period is not extendable and failure to timely submit the required
reference to the earlier application will be considered a waiver of any
benefit under
35 U.S.C. 120
,
121
, or
365(c)
to such
prior-filed application. See
37 CFR 1.78(d)(3)
.
However, if the entire delay, between the date the claim was due under
37 CFR 1.78(d)(3)
and
the date the claim was filed, was unintentional, a petition under
37 CFR 1.78(e)
may be
filed to accept the delayed claim.
A prior filed nonprovisional application is copending with
the national stage application if the prior U.S. national application was
pending on the international filing date of the national stage
application.
A prior-filed international application designating the
United States of America is copending with the national stage application if
the prior international application was not abandoned or withdrawn, either
generally or as to the United States, on the international filing date of
the national stage application.
Note: a national stage application submitted under
35
U.S.C. 371
may not claim benefit of the filing date
of the international application of which it is the national stage since its
filing date is the international filing date of the international
application. See also
MPEP § 1893.03(b)
. Stated
differently, since the international application is not an earlier
application (it has the same filing date as the national stage), a benefit
claim under
35 U.S.C. 120
in the
national stage to the international application is inappropriate.
For a comparison with
35 U.S.C.
120
benefit claims in a national application filed
under
35
U.S.C
nternational
application. See also
MPEP § 1893.03(b)
. Stated
differently, since the international application is not an earlier
application (it has the same filing date as the national stage), a benefit
claim under
35 U.S.C. 120
in the
national stage to the international application is inappropriate.
For a comparison with
35 U.S.C.
120
benefit claims in a national application filed
under
35
U.S.C. 111(a)
, see
MPEP §
1895
.

## Nearby sections

- [MPEP § 1801 Basic Patent Cooperation Treaty (PCT) Principles](https://www.frixlaw.com/law-library/statutes/MPEP_S1801.md)
- [MPEP § 1802 PCT Definitions](https://www.frixlaw.com/law-library/statutes/MPEP_S1802.md)
- [MPEP § 1803 Reservations Under the PCT Taken by, and Notifications of Incompatibility Made by, the United States of America](https://www.frixlaw.com/law-library/statutes/MPEP_S1803.md)
- [MPEP § 1804 [Reserved]](https://www.frixlaw.com/law-library/statutes/MPEP_S1804.md)
- [MPEP § 1805 Where To File an International Application](https://www.frixlaw.com/law-library/statutes/MPEP_S1805.md)
- [MPEP § 1806 Applicants and Inventors](https://www.frixlaw.com/law-library/statutes/MPEP_S1806.md)
- [MPEP § 1807 Agent or Common Representative and General Power of Attorney](https://www.frixlaw.com/law-library/statutes/MPEP_S1807.md)
- [MPEP § 1808 Change in or Revocation of the Appointment of an Agent or a Common Representative](https://www.frixlaw.com/law-library/statutes/MPEP_S1808.md)
- [MPEP § 1809 Access to the USPTO patent electronic filing system](https://www.frixlaw.com/law-library/statutes/MPEP_S1809.md)
- [MPEP § 1810 Filing Date Requirements](https://www.frixlaw.com/law-library/statutes/MPEP_S1810.md)
- [MPEP § 1811 [Reserved]](https://www.frixlaw.com/law-library/statutes/MPEP_S1811.md)
- [MPEP § 1812 Elements of the International Application](https://www.frixlaw.com/law-library/statutes/MPEP_S1812.md)
- [MPEP § 1817 PCT Member States](https://www.frixlaw.com/law-library/statutes/MPEP_S1817.md)
- [MPEP § 1818 [Reserved]](https://www.frixlaw.com/law-library/statutes/MPEP_S1818.md)

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/statutes/MPEP_S1893.03(c). Check the current official text before relying on it. Not legal advice.