How does the effective filing date affect prior art under pre-AIA 35 U.S.C. 102(e)?
The effective filing date is crucial in determining what can be used as prior art under pre-AIA 35 U.S.C. 102(e). The MPEP explains:
“It is the earliest effective U.S. filing date (which will include certain international filing dates) of the U.S. patent or application publication being relied on as the critical reference date and subject matter not included in the patent or application publication itself can only be used when that subject matter becomes public.”
This means that the content of a U.S. patent or application publication can be used as prior art as of its earliest effective U.S. filing date, which may include certain international filing dates. However, any subject matter not included in the publication itself can only be used as prior art from the date it became publicly available.
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