How is the "prior art" date determined for a PCT published application under a 102(f) rejection?

The determination of the "prior art" date for a PCT published application under a 102(f) rejection is based on the filing date of the PCT application itself. When a PCT application is filed, it establishes a priority date which is critical for assessing whether a subsequent U.S. application can be considered novel and non-obvious in light of prior art. This is particularly significant in jurisdictions that adhere to the first-to-file system prefaced by the AIA (America Invents Act).

For a PCT application published in English, the filing date becomes the effective date against which other applications are evaluated to determine whether they are prior art. This means that if a subsequent application is filed after the PCT's filing date, it can be rejected under 102(f) if it is found that the applicant was not the true inventor, reflecting the prior art established by that PCT application.

Understanding this mechanism is essential for navigating patent law effectively, as it underlines the importance of an application's filing date in establishing prior art and potential challenges related to inventorship. Thus, the filing date of the PCT application serves as the basis for invoking prior art status in cases of 102(f) rejections.