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 (Patent Cooperation Treaty) published application under a 102(f) rejection is based on the filing date of the PCT application, provided that it is published in English. This is significant because under U.S. patent law, specifically 35 U.S.C. 102(f), prior art can include any disclosures made before the claimed invention date that have a bearing on the right to the patent.

When a PCT application is filed, it undergoes an international search and is typically published approximately 18 months after the earliest priority date. If this publication occurs in English, the filing date of the PCT application becomes relevant for determining prior art status. This publication date establishes that the contents of the PCT application may be considered prior art against the same subject matter when examining subsequent U.S. patent applications.

Thus, in the context of a 102(f) rejection, the filing date of the PCT application serves as the relevant date for assessing whether the applicant had rights to their invention when the prior art was published. It directly impacts the assessment of whether the applicant derived their invention from another disclosed in the PCT application before their own filing.

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