PCT claiming priority of CIP


Hi, Can you please advise?
We filed a utility application in the US about 14 months ago, 4 months later we filed a CIP claiming its priority and 10 months after the filing of the CIP we filed a PCT application claiming the priority of the CIP.
The first utility application will be published in two months. The question is-- how will this affect, if at all, the priority date of the PCT (which currently is the filing date of the CIP), and will the first utility application be used as prior art against us?


回答: 4 public & 0 非公開

Steven weinrieb

PCT does not really recognize any priority between a CIP and an original/parent application as is done in the US - they go strictly by publication dates. So, since your CIP application was obviously filed before the publication of the original or parent US application, and since the PCT application claims priority to the US CIP, the original/parent US application will not constitute prior art against your PCT application. Sometimes, practitioners inadvertently claim something in a PCT application that is based upon, for example, one or more CIP applications but forget the fact that while the continuity/priority may hold up in the corresponding US application, if there is no direct priority back to a particular US application, and that US application is published, then that published application could serve as prior art against your later-filed application. In your case, since there has been no publication yet of any of the applications, your priority is intact and the original/parent US application will not constitute prior art.