This one is tough. Please remember, this is just an overview.  You may learn more about any and all of these statutes by reviewing the MPEP or our in-depth training.

35 U.S.C. 102(e) deals with prior art by another that was filed in the U.S. before the invention by the applicant for the new patent. Remember that only one inventor need be different for the application to be considered filed by another. The trick with 102(e) is that the international filing date of an application will sometimes qualify as the U.S. filing date if certain criteria are met.

So what's the criteria?

First of all, in order to qualify, the prior art must be one of the following types of references; a U.S. patent, a U.S. application publication, or a World Intellectual Property Organization (WIPO) publication of an international application.

If the prior art is one of the above mentioned references, then you need to determine whether or not it claims the benefit of an international application. If the reference does not result from or claim the benefit of an international application, then you can stop there. The 102(e) date of reference is the earliest effective U.S. filing date and that's pretty much that. However, if the reference does result from or claim the benefit of an international application, then there is a chance that its filing date under 102(d) might become the filing date of the international application.

Now, in order for this to be a possibility, the international application must meet the following three conditions. First, it must have an international filing date on or after 11/29/00 (this law wasn't in effect any earlier). Second, this international application must designate the U.S. and third, it must be published under PCT Article 21(2) in English. If the reference meets all of these conditions, the international filing date will be the U.S. filing date for prior art purposed under 35 U.S.C. 102(e).