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ARTICLE · 09 JULY 2008

Application Data Sheets—Substance Over Form Carries The Day

McDermott Will & Emery
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The United States Court of Appeals for the Federal Circuit confirmed the practice of claiming the benefit of an earlier filed application using solely an application data sheet.

United StatesIntellectual Property
Leigh Martinson
Leigh Martinson
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The United States Court of Appeals for the Federal Circuit confirmed the practice of claiming the benefit of an earlier filed application using solely an application data sheet. E.I. du Pont de Nemours v. MacDermid Printing Solutions, L.L.C., Case No. 07-1568 (Fed. Cir., May 14, 2008) (Michel, J.).

On February 27, 2002, when it filed the application for the patent in question, E.I. du Pont de Nemours (DuPont) filed an application data sheet that stated: "[t]his application is a non-provisional of provisional application 60/273669 2001-03-06 WHICH IS PENDING." The application itself did not include a "related applications" section or the like. Thus, the only claim for the benefit of the provisional application was found in the application data sheet. The priority claim did not appear on the face of the published application or the issued patent. DuPont requested and was granted a Certificate of

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