TMEP 1003.06: Applicants May File Under both §§44(d) and 44(e)

October 2017 Edition of the TMEP

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1003.06    Applicants May File Under both §§44(d) and 44(e)

In some cases, a §44 applicant may have already received, before filing in the USPTO, a foreign registration as a result of the same foreign application upon which the applicant relies for priority under §44(d).  This may occur in countries that do not examine applications prior to registration.  In this situation, the applicant may file under both §44(d) and §44(e).

An applicant may also claim priority under §44(d) based upon a foreign application, and proceed to registration under §44(e) based upon a different foreign registration.  Both foreign countries must be parties to a treaty or agreement with the United States and the foreign registration must be from a country of origin of the applicant.  If the applicant amends an application to rely on a different foreign registration, this is not considered a change in basis, but may require republication. See TMEP §1004.02.