The period of priority, i.e. the period during which the priority right exists, is usually 6 months for industrial designs and trademarks and 12 months for patents and utility models. The period of priority is often referred to as the "priority year" for patents and utility models.
In patent law, when a priority is validly claimed, the date of filing of the first application, called the "priority date", is considered to be the "effective date of filing" for the examination of novelty and inventive step or non-obviousness for the subsequent application claiming the priority of the first application. In other words, the prior art which is taken into account for examining the novelty and inventive step or non-obviousness of the invention claimed in the subsequent application would not be everything made available to the public before the filing date (of the subsequent application) but everything made available to the public before the priority date, i.e. the date of filing of the first application.
The "basic purpose [of the right of priority] is to safeguard, for a limited period, the interests of a patent applicant in his endeavour to obtain international protection for his invention, thereby alleviating the negative consequences of the principle of territoriality in patent law.
The "Paris Convention priority right", also called "Convention priority right" or "Union priority right", is a "priority right" under a multilateral arrangement, defined by Article 4 of the Paris Convention for the Protection of Industrial Property of 1883. The Convention priority right is probably the most widely known priority right. It is defined by its Article 4 A.(1):
Article 4 B. of the Paris Convention describes the effects of the priority right:
Article 2 paragraph 1 of the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs Agreement) in conjunction with the Paris Convention provides a "derived" Convention priority right. That is, while WTO members need not ratify the Paris Convention, they should however comply with Articles 1 through 12, and Article 19, of the Paris Convention. (For a comparative list of the States party to the Paris Convention and the members of the WTO, see for instance States Party to PCT/Paris/WTO] on the WIPO web site).
As explained by the Enlarged Board of Appeal of the European Patent Office (EPO) in its decision G 3/93 of August 16, 1994 (Reasons 4):
The Patent Cooperation Treaty, in its Article 8(1), provides the possibility of claiming a right of priority for the filing of an international application (PCT application):
However, Rule 4.10(a) as amended with effect from January 1, 2000 does not apply to all designated Offices. For instance, for the European Patent Office as designated Office, the old Rule 4.10(a) still applies, that is, rights of priority of first applications made in a WTO member not party to the Paris Convention are not recognised.
An example may help to understand the legal concept of priority right. The example presented here illustrates the case of the priority right in patent law, but the example could be extended to trademarks, taking into account the difference of priority period (12 months for patents, 6 months for trademarks).
Let us imagine the following scenario. Ms. A has invented an improved mousetrap and decides to apply for a patent on her mousetrap. She first files a German patent application on July 15, 2006. Starting from July 15, 2006, Ms. A has then one year to file patent applications in other countries to be able to benefit from the date of filing of the German patent application in these other countries. If Ms. A files on July 15, 2007 a patent application in the United Kingdom (UK) for her mousetrap, and if, upon filing the patent application in the United Kingdom, Ms. A claims the priority of the earliest German patent application filed one year before, the effective date of filing for examining the novelty and inventive step requirements in the United Kingdom will be the July 15, 2006, not July 15, 2007. The effective date of filing will be the date of priority, July 15, 2006, not the actual date of filing in the United Kingdom, July 15, 2007.
This means that any disclosure to the public of the improved mousetrap between July 15, 2006 and July 15, 2007 will not be considered prior art against Ms. A's patent application in the United Kingdom. Any disclosure to the public of the improved mousetrap between July 15, 2006 and July 15, 2007 will not affect the novelty of her patent application in the United Kingdom. If Mr. B independently invents around January 2007 the same improved mousetrap and decides to directly publish in February 2007 a paper explaining how his new mousetrap works, the publication of the paper by Mr. B will not affect the novelty of Ms. A's patent application in the United Kingdom, even though the publication of Mr. B's paper takes place before the actual date of filing of Ms. A's UK patent application.
The priority system, including this one-year priority right, enables Ms. A to file a patent application as soon as possible in one country (in this case in Germany, and in German language), and gives her one year to do whatever is necessary to file patent applications in other countries (translating the text of the application, filling the application forms, sending the translated application and forms to the foreign patent offices, collecting the funds to pay the filing fees, and so on) without being affected by any intermediate publication.
Publication No. WO/2010/063907 Published on June 10, French Inventors Develop Media Nanometer, Angstrom-Scale Particle Preparation, Deposition Method
Jun 10, 2010; GENEVA, June 12 -- Alex Hr Roustaei and Abdelmadjid Djemai, both of France, have developed methods for preparing and depositing...