35 U.S.C. § 120

Benefit of earlier filing date in the United States

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An application for patent for an invention disclosed in the manner provided by section 112(a) (other than the requirement to disclose the best mode) in an application previously filed in the United States, or as provided by section 363 or 385, which names an inventor or joint inventor in the previously filed application shall have the same effect, as to such invention, as though filed on the date of the prior application, if filed before the patenting or abandonment of or termination of proceedings on the first application or on an application similarly entitled to the benefit of the filing date of the first application and if it contains or is amended to contain a specific reference to the earlier filed application. No application shall be entitled to the benefit of an earlier filed application under this section unless an amendment containing the specific reference to the earlier filed application is submitted at such time during the pendency of the application as required by the Director. The Director may consider the failure to submit such an amendment within that time period as a waiver of any benefit under this section. The Director may establish procedures, including the requirement for payment of the fee specified in section 41(a)(7), to accept an unintentionally delayed submission of an amendment under this section.

Notes of Decisions

Cited in 493 cases (43 in the last 5 years), 1954–2026 · leading case: Zenon Env't, Inc. v. United States Filter Corp., 506 F.3d 1370 (Fed. Cir. 2007).

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Zenon Env't, Inc. v. United States Filter Corp., 506 F.3d 1370 (Fed. Cir. 2007). · cites it 16× “Zenon asserts that the '319 patent is entitled to the priority date of the '373 patent under 35 U.S.C. § 120 . [1] Relevant to this appeal are the disclosures of the intervening patents.”

Tafas v. Doll, 559 F.3d 1345 (Fed. Cir. 2009). · cites it 22× “Because we conclude that the four rules are procedural, but that Rule 78 is inconsistent with 35 U.S.C. § 120 , we affirm-in-part, vacate-in-part, and remand.”

In re Hogan, 559 F.2d 595 (C.C.P.A. 1977). · cites it 11× “5 The Disclosures Appellants assert that, under the provisions of 35 U.S.C. § 120 , 6 claims 13 and 15 are entitled to the benefit of the filing date of the 1953 application and claim 14 is entitled to the benefit of the filing date of the 1956 application.”

Vas-Cath Inc. & Gambro, Inc. v. Sakharam D. Mahurkar, & Quinton Instruments Co., 935 F.2d 1555 (Fed. Cir. 1991). · cites it 5× “517 , 17 USPQ2d 1353, the district court concluded that none of the twenty-one claims of the two utility patents was entitled, under 35 U.S.C. § 120 , to the benefit of the filing date of Mahurkar's earlier-filed United States design patent application Serial No.”

Bayer AG v. Schein Pharm., Inc., 129 F. Supp. 2d 705 (D.N.J. 2001). · cites it 8× “292,560 (the “'560 application”) pursuant to 35 U.S.C. § 120 because the '560 application does not satisfy the “best mode” requirement of 35 U.”

Amgen Inc. v. F. Hoffmann-La Roche Ltd., 580 F.3d 1340 (Fed. Cir. 2009). · cites it 4× “Roche’s view that Takeda changed the time frame of the obviousness-type double patenting inquiry in all cases collides with 35 U.S.C. § 120 . Section 120, entitled “Benefit of earlier filing date in the United States,” recites in pertinent part: An application for patent for an…”

In Re Charles D. Huston & Darryl J. Cornish, 308 F.3d 1267 (Fed. Cir. 2002). · cites it 7× “§ 112 , as required by 35 U.S.C. § 120 . 3 Specifically, the examiner deter *1272 mined that the '368 application did not disclose the display of an advertising message to a golfer as set forth in the claims on appeal.”

Rsch. Corp. Tech., Inc. v. Microsoft Corp., 627 F.3d 859 (Fed. Cir. 2010). · cites it 4× “The remaining four patents — the '305, '941, '518, and '772 patents — claim the benefit under 35 U.S.C. § 120 of the effective filing dates of the 1990 and 1991 Applications.”

Tech. Licensing Corp. v. Videotek, Inc., 545 F.3d 1316 (Fed. Cir. 2008). · cites it 3× “TLC’s counterargument is that claim 33 is entitled, under 35 U.S.C. § 120 , to the benefit of the 1992 filing date of its ancestor, the original '323 application.”

Studiengesellschaft Kohle, M.B.H. v. Shell Oil Co., Defendant/cross-Appellant, 112 F.3d 1561 (Fed. Cir. 1997). · cites it 8× “To arrive at this earlier filing date, SGK relied on 35 U.S.C. § 120 (1994) to combine the disclosures of the two earlier patent applications (the 482,412 application and the 514,068 application).”

Droplets, Inc. v. Etrade Bank, 887 F.3d 1309 (Fed. Cir. 2018). · cites it 6× “In reaching this conclusion, the Board found that: (1) the '115 Patent failed to enumerate a priority claim sufficient to avoid fully-invalidating prior art; and (2) incorporation by reference is insufficient to satisfy a patentee's burden of providing notice of the asserted…”

Baxter Int'l, Inc., & Baxter Healthcare Corp. v. McGaw Inc., Defendant-Cross, 149 F.3d 1321 (Fed. Cir. 1998). · cites it 4× “(McGaw) cross-appeals the district court’s decision and alleges that the applications from which the ’554, ’234, and ’648 patents issued failed to satisfy the requirements of 35 U.S.C. § 120 1 and that those patents are therefore invalid under 35 U.”

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