一個簡單的問題：一件後申請案（如新申請案、CIP等）是否可以他人申請的前申請案作為優先權基礎案？即便答案應該很清楚，但還是要找到法條支持。
根據巴黎公約Art. 4，在任一巴黎公約簽署國合法提出發明、新型、設計或商標的任何人，或其繼承人，在固定期限內應享有他國申請的優先權。
也就是說其他國家的申請案應是這個人或「繼承人（successor）」，所謂繼承人，對照美國專利法35U.S.C.119，指合法代表人（legal representative）或經受讓（assign）的人，才是有資格取得前申請案（或應為最早申請案）的優先權。
Article 4 A to I.
Patents, Utility Models, Industrial Designs, Marks, Inventors’ Certificates: Right of Priority G. Patents: Division of the Application A. (1) Any person who has duly filed an application for a patent, or for the registration of a utility model, or of an industrial design, or of a trademark, in one of the countries of the Union, or his successor in title, shall enjoy, for the purpose of filing in the other countries, a right of priority during the periods hereinafter fixed. …
35 U.S.C. 119 Benefit of earlier filing date; right of priority.
·
(a) An application for patent
for an invention filed in this country by any person who has, or whose legal
representatives or assigns have, previously regularly filed an application for
a patent for the same invention in a foreign country which affords similar
privileges in the case of applications filed in the United States or to
citizens of the United States, or in a WTO member country, shall have the same
effect as the same application would have if filed in this country on the date
on which the application for patent for the same invention was first filed in
such foreign country, if the application in this country is filed within 12 months from the earliest date
on which such foreign application was filed. The Director may prescribe
regulations, including the requirement for payment of the fee specified in
section 41(a)(7), pursuant to which the 12-month period set forth in this
subsection may be extended by an additional 2 months if the delay in filing the
application in this country within the 12-month period was unintentional.
設計案的優先權規定在35 U.S.C. 172，不能主張臨時申請案優先權。
35 U.S.C. 172 Right of priority.
The right of priority provided for by subsections (a) through
(d) of section 119 shall be six months in the case
of designs. The right of priority provided for by section 119(e) shall not apply to designs.
MPEP 213.02規定主張優先權的資格，所謂申請人、申請人的合法代表人，如相同發明人，或至少一個相同發明人。
MPEP 213.02
II. THE SAME INVENTOR OR AT LEAST ONE COMMON
JOINT INVENTOR
Pursuant to 35 U.S.C. 119(a), the foreign application must have
been filed by the same applicant as
the applicant in the United States, or by applicant's
legal representatives or assigns.
Consistent with longstanding Office policy, this is interpreted to mean that
the U.S. and foreign applications must name the same
inventor or have at least
one joint inventor in common. For example, a right of
priority does not exist in the case of an application of sole inventor A in the
foreign country and sole inventor B in the United States, even though the two
applications may be owned by the same party. The application in the foreign
country may have been filed by the assignee, or by the
legal representative or agent of
the inventor, rather than by the inventor, but in such
cases the name of the inventor is usually given in the foreign application on a
paper filed therein. Joint inventors A and B in a nonprovisional application
filed in the United States Patent and Trademark Office may properly claim the
benefit of an application filed in a foreign country by A and another
application filed in a foreign country by B, i.e., A and B may each claim the
benefit of their foreign filed applications. See MPEP § 602.09 for more information about joint
inventors. See MPEP §§ 602.01(c) and 1412.04 for correction of inventorship. If
upon filing of the U.S. application and the filing of a relied upon prior-filed
foreign application there is an overlap in appropriately named inventorship, an
application can properly claim right of priority of the prior filed
application’s filing date pursuant to 35 U.S.C. 119. See 37 CFR 1.45, 1.48 and 1.78.
Ron
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