Outside of the interference context, the court seems to suggest that an applicant can rely on § 120 priority in interpreting almost any statutory provision unless it is otherwise clear that the actual filing date is the one at issue.
Background / Facts: 35 USC § 135(b)(2) requires a party who wishes to provoke an interference to do so in a timely manner, stating: “A claim which is the same as, or for the same or substantially the same subject matter as, a claim of an application published under section 122(b) of this title may be made in an application filed after the application is published only if the claim is made before 1 year after the date on which the application is published.” Nevertheless, seeking to provoke an interference, Ling copied claims from Loughlin’s pending application into a continuing application of his own that was granted priority benefit under § 120, but not actually filed until well over a year after Loughlin’s application published.
Issue(s): Whether “an application filed” under the meaning of § 135(b)(2) is afforded the benefit provision of § 120 in calculating its filing date.
Holding(s): Yes. The BPAI correctly interpreted “an application filed” in § 135(b)(2) as including the possibility of claiming benefit under § 120 to an earlier effective filing date. The first sentence of § 120 permits an application to claim the benefit of an earlier filing date, such that the application is treated as having been effectively filed on the earlier date. Nothing in § 120 limits its application to any specific grounds for rejection.