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I'm confused what should be the prior art based on jurisdiction. Some have a grace period, but which are still prior art for others.

I am basically confused about the following points.

  1. Grace periods
  2. What would be the prior art if a patent claims priority from provisional, non provisional, CIP, Divisional and PCT application.
  3. Some inventor shows their product or features in world expo.
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US

In the US, prior art includes:

  1. any publication made before the deemed application date of the application; (35 USC 102(a)(1)); and
  2. any published patent application filed before the deemed application date. (35 USC 102(a)(2))

However, if the disclosure was by the applicant themselves, less than 12 months before the deemed application date, it is not prior art. (35 USC 102(2))

EPO

At the EPO, prior art includes:

  1. any publication made before the deemed application date of the application; (EPC art 54(2)); and
  2. any patent application filed before the deemed application date (though this is only relevant to novelty). (EPC art 54(3))

However, if the disclosure was by the applicant themselves at an approved international exhibition, less than 6 months before the application date, it is not prior art. (EPC art 55(1)(b))

PCT

For a PCT application, prior art includes:

  1. anything that was made available to the public prior to the PCT filing date. (PCT Regulations reg 33.1(a))

What is the deemed application date in the US and EPO?

If no priority is claimed, it is the date that the application was filed.

If priority is claimed, it is the date that the priority application was filed.

If benefit of the date of a provisional is claimed, it is the date that the provisional was filed.

This is the same for continuing applications, which inherit the deemed application date of its parent.

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  • 1
    You might want to add that if you disclosed your invention e.g. in the US before filing you are not getting a pct/ep patent even if claiming priority to a US filing where that didn't matter. – DonQuiKong Mar 24 '17 at 23:05
  • Do later-published earlier-filed EP national applications (e.g. DE, FR) count as "European patent applications" under Art. 54(3) for novelty purposes, or just EP applications (and presumably PCT applications designating EP member states)? – user132162 May 18 '18 at 0:38

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