When is Patent Filing Date?

Patent law is a very interesting area of federal, intellectual property law. Inventors depend upon this system, administered by the United States Patent and Trademark Office (USPTO), to protect their rights in their invention. A relevant topic for the investor is the patent filing date, as this date marks the date from which protections are extended. While the filing date may seem like a rather straight-forward concept, it changes depended on the steps or process employed to secure patent rights.

What is a Date Stamp

Regulation 37 C.F.R 1.6 establishes the date of a filing application as when the USPTO stamps the patent application as received. This is known as the date stamp. There are numerous exceptions to this rule, including:

• Applications arriving on Saturday, Sunday, or Federal holidays are not considered received until the next business day. This includes applications sent by fax. The date for electronic filing is the actual date when submitted, even if submitted on a Saturday, Sunday, or federal holiday.
• Applications sent with Priority Mail Express (through the US Postal Service) will be considered stamped on the day of deposit in the mail.

Changing Filing Dates

The filing date for any of the three types of patent rights is the day the application is date stamped. One situation in which the filing date changes is when the prosecution of the patents are dismissed or require re-filing. In this case, the application date will be the date on which the subsequent filing is made. This is not the case for amendments made in the course of the filing process.

Another situation affecting the filing date concerns utility patents. A utility patent application may be provisional or non-provisional. The provisional application sets a filing date. As long as the non-provision patent is filed (or the provisional patent amended to be a non-provisional patent) the original filing date of the provisional patent becomes the filing date of the non-provisional patent.

For purposes of length of patent protection, it is preferable to file a new non-provisional application that references the provisional application. Simply amending the provisional application means the 20-year protection period begins to run from the date the provisional patent was filed, rather than the date of the subsequent non-provisional filing. In either case, however, the filing date is considered to be the original date on which the patent application was stamped by the USPTO.

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