A student question

I have a question about one of the 102 problems provided in the PDF that is on the site.

Q33) Elmer files US patent app on 10/2/09 claiming benefit from Japanese app filed 11/4/08 & claim is perfected. Examiner rejects claims as anticipated by US Patent to Cole filed 3/13/09 and published 11/4/10.

Answer is that there is no 102 bar.

I do not understand why this is not barred under 102(e). I thought you could not claim the benefit of foreign priority under 102(e) and therefore the date I would be comparing was Elmer’s US Filing date vs. Cole’s Filing date – in which Elmer would be barred.

What am I missing something here?

 My response was as follows.

Think of it this way. 35 USC 102(a) and (e) are referenced to the date of invention. If your date of invention is prior to the 102(e) date then you get a patent. But when you file an application the Office has no idea what your date of invention might be, so it assumes your filing date is your date of invention.

Priority of every sort moves that date of invention back in time so in this question the priority date beats the 102(e) and you get a patent.

Still confused?

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