USPTO Patent Bar Practice Exam

The correct answer is that foreign filing dates can indeed be relied upon in an AIA 102(a)(2) rejection, provided they establish priority. Under the America Invents Act (AIA), a disclosure that cannot be pre-dated by a prior foreign application required to establish a priority date can be used in a rejection. This means that if a foreign application was filed before the U.S. application and meets the criteria for establishing priority (such as being related through a PCT application or being filed under certain treaties), its filing date can be used as a reference point for determining the novelty and non-obviousness of the U.S. application.

It is important to understand that not all foreign filing dates qualify; only those that conform to specific statutory requirements set forth by the AIA and appropriate international treaties can be considered. Thus, the reliance on a foreign filing date hinges on its capability to establish priority over the subject matter in consideration during the rejection process.