What is Priority Date Patent? - Key Aspects

Priority Date in patent application refers to the earliest filing date of the application. The applicant can claim a priority date for the application when he files an application in the jurisdiction governed by the Patent Convention Treaty.

The date of filing first application is the Priority Date of that patent application. The applicant while conducting a prior art search can claim the following date and obtain a grant of a patent for the invention. The term Priority date can be synonymous to the first filing date of patent application.

In Intellectual Property, the right over the idea, design or technology is based on first come basis, and hence it is apparent that if the person delays in obtaining a patent for his or her invention they might lose it all together.

Meaning of Priority Date in Patent Law

The priority date is the first date of filing a patent application. The person can submit a patent application within 12 months of the first patent application claiming the priority date as the first filing date of the preceding application.

Priority Document and Priority Date

India ratified International Treaties as per which the applicant claims the priority over other applicants through his first filed application. The application in such circumstances is known as the priority document, and the date on which such document is filed is the priority date.

Also Read: How long does a Patent last?

Importance of Obtaining Patent Priority Date

Before the incorporation of the Patent Convention Treaty, the applicant faced issues while filing International patent application. The applicant had to submit a patent application simultaneously at all the patent office's which was a hassle for the applicant; due to which the patentee had a possibility of losing the novelty of his patent application.

Hence, Priority date helps in the following cases:

  • In the case of foreign filing, you are entitled to postpone your patent application until you receive a detailed report on your invention if you have obtained priority date through national filing.

  • The novelty value of your patent application remains intact even if the someone has filed a patent application with a similar or same invention.

  • If the first application is filed, you can proceed with publically using your patent application.

Accordingly, it can be inferred that if the inventor applies to any of the states that have ratified Patent Convention Treaty; he can claim the date of first filed patent application against any other similar invention seeking protection at the same time.

Related: Grounds of Revocation of Patent in India

Legal Basis of Priority Date

Paris Convention Treaty on Priority Date

A patent that is not new or novel is not a patentable subject matter and hence after assessing the novelty destroying subsequent

Paris convention treaty established priority date filing for International patent application in the year 1883. The treaty, first introduced the priority right in the patent application and the signatory countries accepted the changes that helped the applicants on an International level.

More on: Types of Patents and Exclusive Rights of Patent Holder

According to the Paris Convention Treaty

  • Article 4 of the convention treaty states that the applicant claim priority within 12 months of filing first application.

  • The applicant who files a patent application has right to file an identical application in any other signatory country patent office.

  • Priority can be claimed for an earlier application by the applicant by indicating the date, country, and the patent file number along with the priority document.

Patent Priority Claim

Novelty in a patent application is one of the important aspects as that determines the patentability of the invention. If the invention is not new the patent office or controller of the patent rejects the grant of patent protection for the invention.

An application that is claiming priority needs to fulfil certain conditions that are laid down in section 11 of the Indian Patent Act,1970.

1. Timeline to Claim Priority

Any application claiming priority of an earlier application has to be filed within the specified period. The time limitation to claim priority is 12 months from the date of the first application is filed.

2. Legal Requirements

The applicant is under obligation to fulfil all these requirements in order to receive the protection of patent in more than one country

 

  • Earlier Application

The same patent for which priority is being claimed requires an earlier application which should be duly filed with the patent office. The date of the earlier application should be earlier than the date of the next application.

  • Identifying the applicant and the Invention

Priority for an application can only be claimed if the inventor and the invention are same as that of the earlier application. The claim can be only made by the inventor or his successor only.

The applicant should make sure that the subsequent application does not contain any additional claim which did not receive protection under the law.


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