2126.01 Date of Availability of a Patent as a Reference [R-11.2013]
DATE FOREIGN PATENT IS EFFECTIVE AS A REFERENCE IS USUALLY THE DATE PATENT RIGHTS ARE FORMALLY AWARDED TO ITS APPLICANT
The date the patent is available as a reference is generally the date that the patent becomes enforceable. This date is the date the sovereign formally bestows patents rights to the applicant. In re Monks, 588 F.2d 308, 200 USPQ 129 (CCPA 1978). There is an exception to this rule when the patent is secret as of the date the rights are awarded. In re Ekenstam, 256 F.2d 321, 118 USPQ 349 (CCPA 1958).
Note that MPEP § 901.05 summarizes in tabular form dates of patenting for many foreign patents. For a list of cases that discuss the date of patenting countries for purposes of pre-AIA 35 U.S.C. 102 in particular, see Chisum, Patents § 3.06 n.2.