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Intellectual Property counsel often face the dilemma of when to file a patent application: as soon as possible, or wait and gather more support? Filing an application “early” helps to avoid anticipatory prior art but if the application is filed too early, the applicant may risk rejections during examination for lack of supportive evidence.
On the other hand, if the application is filed too late, the applicant may lose the priority date. This is especially problematic for biopharma industry applicants where on one hand, these data are often critical for securing a patent; on the other hand, the research and development cycle is long and generating experimental and clinical trial data require significant resources and time to obtain, and business and financial reasons can also render it difficult to predict when the data will become available. Frequently supporting data and related information are not available until after the application is filed. Filing a series of provisional applications when data are available does not always remedy the problem. The applicant is left with a difficult decision - whether or not to convert the provisional application(s) into a PCT application (or other non-provisional applications). Further complicating this difficult decision is that not all jurisdictions treat post-filing data in the same manner; even in the same patent office, patent examiners do not treat all post-filing data the same way. This can cause confusion and uncertainty for companies seeking to obtain global patent portfolios.