35 USC 102(d) PATENTS AND PUBLISHED APPLICATIONS EFFECTIVE AS PRIOR ART.
--For purposes of determining whether a patent or application for patent is prior art to a claimed invention under subsection (a)(2), such patent or application shall be considered to have been effectively filed, with respect to any subject matter described in the patent or application --
(1) if paragraph (2) does not apply, as of the actual filing date of the patent or the application for patent; or
(2) if the patent or application for patent is entitled to claim a right of priority under section 119, 365(a), 365(b), 386(a), or 386(b), or to claim the benefit of an earlier filing date under section 120, 121, 365(c), or 386(c) based upon 1 or more prior filed applications for patent, as of the filing date of the earliest such application that describes the subject matter.
Wow.
OK, let's unpack this a little bit.
This section says a patent or application is prior art (1) if paragraph (2) does not apply, when X; or (2) when Y. That's just crazy. You have to get all the way to then end of section (d)(2) to figure out if (d)(1) applies. There's no need to structure it this way: They could just as easily say A patent or application is prior art (1) when Y; or (2) if Y does not apply, when X. Although it's remotely possible that the people who were drafting this were equipped with computers without a backspace or delete key, I think it's much more likely that they were high. They started writing, and the words poured forth. I'm guessing it was meth - hypergraphia is a known side-effect of excessive consumption of uppers.
They could have said it this way:
For purposes of this statute, the effective filing date of a patent or application is the earliest of (1) the actual filing date of the patent or application; or (2) the earliest filing date of a prior application to which the patent or application is entitled to claim priority.
We cut out the listing of the sections under which you can claim priority, which is exhaustive and so is unnecessary. We also cut out the reference to an "application that describes the subject matter," which is subsumed within the concept of entitlement to claim priority, and so is likewise superfluous.
