Administrator
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What counts in a first to file system is the date of filing and not the date of the invention. Regarding filing, the Paris Convention, the Patent Law Treaty and the Patent Cooperation Treaty all refer to “date of filing” either for the purpose of the priority right or the filing date. The minimum time period contemplated in each of those treaties is one day, in that only “dates” are referred to, not times. Particularly in the PCT context, the question of taking into account the exact time (hour and minute) when an application was filed or published, so as to build in any applicable time difference when determining which was the earliest filing or whether a filing preceded a publication, was discussed in respect of priority dates at the PCT Extraordinary Assembly held in 1991, but at that meeting the PCT Member States concluded not to pursue the matter. To our knowledge, it has not been brought up again in the framework of the PCT since then. Of course, if it is the will of WIPO’s Member States to have the organization look once again at this issue in relation to its patent-related treaties, WIPO will be very pleased to do so.
While it is our understanding that it very rarely occurs that two different applicants file patent applications for the same invention at the same patent office on the same day, when such cases do arise, the resolution of such cases is left up to the national law and practice
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