Priority date is imperative to claims of a patent application
because knowledge or information available in the public domain
before the priority date is taken into consideration while
determining whether the claim(s) are entitled to be granted or
rejected. Delay in securing the priority date may lead to addition
of more information or knowledge to the public domain, which may
adversely affect possibility of a patent grant. The approach
applied by the patent office in India to assign priority date to
claims is discussed in this article.
Determining priority date
A complete patent application may include one or more claims,
and each and every claim of the patent application is assigned a
priority date. In other words, different claims in a patent
application can have different priority date.
In case a complete patent application is claiming priority from
a previously filed provisional patent application, and if a claim
of the complete patent application based on the subject matter
disclosed in the provisional patent application, then the priority
date of the claim will be the filing date of the provisional patent
The law in India allows an application filed as a complete
patent application to be considered as a provisional patent
application, if a request is made within 12 months of filing the
above referred complete patent application. A subsequent complete
patent application that is filed by claiming priority from such a
provisional patent application can have a claim based on the
subject matter disclosed in above referred provisional patent
application. In such as scenario the claim's priority date will
be the filing date of the provisional patent application (which was
filed as a complete patent application earlier).
A complete patent application may be filed by claiming priority
from two or more provisional applications. In case a claim in such
a complete patent application is based on the subject matter
disclosed in one of those provisional patent applications, then the
priority date of the claim will be the filing date of the
provisional patent application in which the subject matter is
On the other hand, if a claim in such a complete patent
application is based on the subject matter disclosed in parts in
multiple provisional patent applications, then the priority date of
the claim will be the filing date of the provisional patent
application that was last filed.
A complete patent application may be filed within 12 months of a
previously filed application in India, and claim priority from the
same. In case a claim in such a complete patent application is
based on the subject matter of the previously filed application,
then the priority date of the claim will be the filing date of the
previously filed application.
A claim in a
divisional patent application will have its priority date as
the filing date of an earlier application (provisional(s) or
complete from which the divisional application originated) in which
the subject matter on which the claim is based on is first
A complete patent application filed in India may claim priority
from one or more applications filed in a convention country. A
claim in such a complete patent application will have the priority
date as the filing date of the application in the convention
country in which the subject matter on which the claim is based on
was first disclosed.
Priority date of a claim has a bearing on what can be considered
as prior art to a claim in a patent application. The points
discussed above provide an overview of how priority date is
determined in different scenarios. Hence, claims should be drafted
in such a way that an earliest priority date is established, while
also considering the scope of protection desired, especially when a
complete patent application claims priority from multiple patent
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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