35 U.S.C. § 120 — Benefit of earlier filing date in the United

Page 55 TITLE 35—PATENTS § 120 ‘‘The amendments made by this section [amending this section and section 111 of this title] shall take effect on the date of the enactment of this Act [Nov. 29, 1999] and shall apply to any provisional application filed on or after June 8, 1995, except that the amendments made by subsections (b) and (c) [amending this section] shall have no effect with respect to any patent which is the subject of litigation in an action commenced before such date of enactment.’’ EFFECTIVE DATE OF 1994 AMENDMENT Amendment by Pub. L. 103–465 effective 6 months after Dec. 8, 1994, and applicable to all patent applica- tions filed in the United States on or after that effec- tive date, with provisions relating to earliest filed pat- ent application, see section 534(b)(1), (3) of Pub. L. 103–465, set out as a note under section 154 of this title. EFFECTIVE DATE OF 1975 AMENDMENT Amendment by Pub. L. 93–596 effective Jan. 2, 1975, see section 4 of Pub. L. 93–596, set out as a note under section 1111 of Title 15, Commerce and Trade. EFFECTIVE DATE OF 1972 AMENDMENT Pub. L. 92–358, § 3(a), July 28, 1972, 86 Stat. 502, pro- vided that: ‘‘Section 1 of this Act [amending this sec- tion] shall take effect on the date when Articles 1–12 of the Paris Convention of March 20, 1883, for the Protec- tion of Industrial Property, as revised at Stockholm, July 14, 1967, come into force with respect to the United States [Aug. 25, 1973] and shall apply only to applica- tions thereafter filed in the United States.’’ EFFECTIVE DATE OF 1961 AMENDMENT Amendment by Pub. L. 87–333 effective on the date when the Convention of Paris for the Protection of In- dustrial Property of March 20, 1883, as revised at Lis- bon, Oct. 31, 1958, comes into force with respect to the United States [Jan. 4, 1962] and shall apply only to ap- plications thereafter filed in the United States by per- sons entitled to the benefit of said convention, as re- vised at the time of such filing, see section 3 of Pub. L. 87–333, set out as a note under section 1126 of Title 15, Commerce and Trade. JAPANESE AND CERTAIN GERMAN NATIONALS; TEMPORARY EXTENSION OF PRIORITY RIGHTS Act Aug. 23, 1954, ch. 823, 68 Stat. 764, provided that the priority rights specified in section 101 of former Title 35, Patents, which arose before Apr. 1, 1950, were extended, with respect to inventions made subsequent to Jan. 1, 1946, in favor of certain Japanese and German nationals, to a date nine months after Aug. 23, 1954, subject to conditions and limitations specified in sec- tions 104, 110, 112, and 114 of former title 35. § 120. Benefit of earlier filing date in the United States An application for patent for an invention dis- closed 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 ter- mination 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 applica- tion. No application shall be entitled to the ben- efit of an earlier filed application under this sec- tion unless an amendment containing the spe- cific 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. (July 19, 1952, ch. 950, 66 Stat. 800; Pub. L. 94–131, § 9, Nov. 14, 1975, 89 Stat. 691; Pub. L. 98–622, title I, § 104(b), Nov. 8, 1984, 98 Stat. 3385; Pub. L. 106–113, div. B, § 1000(a)(9) [title IV, § 4503(b)(1)], Nov. 29, 1999, 113 Stat. 1536, 1501A–563; Pub. L. 112–29, §§ 3(f), 15(b), 20(j), Sept. 16, 2011, 125 Stat. 288, 328, 335; Pub. L. 112–211, title I, § 102(5), title II, § 202(b)(3), Dec. 18, 2012, 126 Stat. 1531, 1536.) HISTORICAL AND REVISION NOTES This section represents present law not expressed in the statute, except for the added requirement that the first application must be specifically mentioned in the second. Editorial Notes AMENDMENTS 2012—Pub. L. 112–211, § 202(b)(3), substituted ‘‘includ- ing the requirement for payment of the fee specified in section 41(a)(7)’’ for ‘‘including the payment of a sur- charge’’. Pub. L. 112–211, § 102(5), substituted ‘‘section 363 or 385’’ for ‘‘section 363’’. 2011—Pub. L. 112–29, § 20(j), struck out ‘‘of this title’’ after ‘‘363’’. Pub. L. 112–29, § 15(b), substituted ‘‘section 112(a) (other than the requirement to disclose the best mode)’’ for ‘‘the first paragraph of section 112 of this title’’. Pub. L. 112–29, § 3(f), substituted ‘‘which names an in- ventor or joint inventor’’ for ‘‘which is filed by an in- ventor or inventors named’’. 1999—Pub. L. 106–113 inserted at end ‘‘No application shall be entitled to the benefit of an earlier filed appli- cation under this section unless an amendment con- taining the specific reference to the earlier filed appli- cation is submitted at such time during the pendency of the application as required by the Director. The Di- rector 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 payment of a surcharge, to accept an unintentionally delayed submission of an amendment under this section.’’ 1984—Pub. L. 98–622 substituted ‘‘which is filed by an inventor or inventors named in the previously filed ap- plication’’ for ‘‘by the same inventor’’. 1975—Pub. L. 94–131 inserted ‘‘, or as provided by sec- tion 363 of this title,’’ after ‘‘filed in the United States’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2012 AMENDMENT Amendment by section 102(5) of Pub. L. 112–211 effec- tive on the later of the date that is 1 year after Dec. 18, 2012, or the date that the Geneva Act of the Hague Agreement Concerning the International Registration of Industrial Designs enters into force with respect to the United States (May 13, 2015), and applicable only to certain applications filed on and after that effective date and patents issuing thereon, see section 103 of Pub. L. 112–211, set out as a note under section 100 of this title. Page 56 TITLE 35—PATENTS § 121 Amendment by section 202(b)(3) of Pub. L. 112–211 ef- fective on the date that is 1 year after Dec. 18, 2012, ap- plicable to patents issued before, on, or after that effec- tive date and patent applications pending on or filed after that effective date, and not effective with respect to patents in litigation commenced before that effec- tive date, see section 203 of Pub. L. 112–211, set out as an Effective Date note under section 27 of this title. EFFECTIVE DATE OF 2011 AMENDMENT Amendment by section 3(f) of Pub. L. 112–29 effective upon the expiration of the 18-month period beginning on Sept. 16, 2011, and applicable to certain applications for patent and any patents issuing thereon, see section 3(n) of Pub. L. 112–29, set out as an Effective Date of 2011 Amendment; Savings Provisions note under sec- tion 100 of this title. Amendment by section 15(b) of Pub. L. 112–29 effec- tive on Sept. 16, 2011, and applicable to proceedings commenced on or after that date, see section 15(c) of Pub. L. 112–29, set out as a note under section 119 of this title. Amendment by section 20(j) of Pub. L. 112–29 effective upon the expiration of the 1-year period beginning on Sept. 16, 2011, and applicable to proceedings commenced on or after that effective date, see section 20(l) of Pub. L. 112–29, set out as a note under section 2 of this title. EFFECTIVE DATE OF 1999 AMENDMENT Amendment by Pub. L. 106–113 effective Nov. 29, 2000, and applicable only to applications (including inter- national applications designating the United States) filed on or after that date, see section 1000(a)(9) [title IV, § 4508] of Pub. L. 106–113, as amended, set out as a note under section 10 of this title. EFFECTIVE DATE OF 1984 AMENDMENT Amendment by Pub. L. 98–622 applicable to all United States patents granted before, on, or after Nov. 8, 1984, and to all applications for United States patents pend- ing on or filed after that date, except as otherwise pro- vided, see section 106 of Pub. L. 98–622, set out as a note under section 103 of this title. EFFECTIVE DATE OF 1975 AMENDMENT Amendment by Pub. L. 94–131 effective Jan. 24, 1978, and applicable on and after that date to patent applica- tions filed in the United States and to international ap- plications, where applicable, see section 11 of Pub. L. 94–131, set out as an Effective Date note under section 351 of this title. § 121. Divisional applications If two or more independent and distinct inven- tions are claimed in one application, the Direc- tor may require the application to be restricted to one of the inventions. If the other invention is made the subject of a divisional application which complies with the requirements of section 120 it shall be entitled to the benefit of the filing date of the original application. A patent issuing on an application with respect to which a requirement for restriction under this section has been made, or on an application filed as a re- sult of such a requirement, shall not be used as a reference either in the Patent and Trademark Office or in the courts against a divisional appli- cation or against the original application or any patent issued on either of them, if the divisional application is filed before the issuance of the patent on the other application. The validity of a patent shall not be questioned for failure of the Director to require the application to be re- stricted to one invention. (July 19, 1952, ch. 950, 66 Stat. 800; Pub. L. 93–596, § 1, Jan. 2, 1975, 88 Stat. 1949; Pub. L. 106–113, div. B, § 1000(a)(9) [title IV, § 4732(a)(10)(A)], Nov. 29, 1999, 113 Stat. 1536, 1501A–582; Pub. L. 107–273, div. C, title III, § 13206(b)(1)(B), Nov. 2, 2002, 116 Stat. 1906; Pub. L. 112–29, §§ 4(a)(2), 20(j), Sept. 16, 2011, 125 Stat. 295, 335.) HISTORICAL AND REVISION NOTES This section enacts as law existing practice with re- spect to division, at the same time introducing a num- ber of changes. Division is made discretionary with the Commissioner. The requirements of section 120 are made applicable and neither of the resulting patents can be held invalid over the other merely because of their being divided in several patents. In some cases a divisional application may be filed by the assignee. Editorial Notes AMENDMENTS 2011—Pub. L. 112–29, § 20(j), struck out ‘‘of this title’’ after ‘‘120’’. Pub. L. 112–29, § 4(a)(2), struck out ‘‘If a divisional ap- plication is directed solely to subject matter described and claimed in the original application as filed, the Di- rector may dispense with signing and execution by the inventor.’’ before ‘‘The validity of a patent’’. 2002—Pub. L. 107–273 made technical correction to di- rectory language of Pub. L. 106–113. See 1999 Amend- ment note below. 1999—Pub. L. 106–113, as amended by Pub. L. 107–273, substituted ‘‘Director’’ for ‘‘Commissioner’’ wherever appearing. 1975—Pub. L. 93–596 substituted ‘‘Patent and Trade- mark Office’’ for ‘‘Patent Office’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2011 AMENDMENT Amendment by section 4(a)(2) of Pub. L. 112–29 effec- tive upon the expiration of the 1-year period beginning on Sept. 16, 2011, and applicable to any patent applica- tion that is filed on or after that effective date, see sec- tion 4(e) of Pub. L. 112–29, set out as a note under sec- tion 111 of this title. Amendment by section 20(j) of Pub. L. 112–29 effective upon the expiration of the 1-year period beginning on Sept. 16, 2011, and applicable to proceedings commenced on or after that effective date, see section 20(l) of Pub. L. 112–29, set out as a note under section 2 of this title. EFFECTIVE DATE OF 1999 AMENDMENT Amendment by Pub. L. 106–113 effective 4 months after Nov. 29, 1999, see section 1000(a)(9) [title IV, § 4731] of Pub. L. 106–113, set out as a note under section 1 of this title. EFFECTIVE DATE OF 1975 AMENDMENT Amendment by Pub. L. 93–596 effective Jan. 2, 1975, see section 4 of Pub. L. 93–596, set out as a note under section 1111 of Title 15, Commerce and Trade. § 122. Confidential status of applications; publi- cation of patent applications (a) CONFIDENTIALITY.—Except as provided in subsection (b), applications for patents shall be kept in confidence by the Patent and Trademark Office and no information concerning the same given without authority of the applicant or owner unless necessary to carry out the provi- sions of an Act of Congress or in such special circumstances as may be determined by the Di- rector. (b) PUBLICATION.— (1) IN GENERAL.—(A) Subject to paragraph (2), each application for a patent shall be pub-