Can a reference published after the filing date be used under MPEP 2124?
Can a reference published after the filing date be used under MPEP 2124?
Yes, under certain circumstances, a reference published after the filing date of an application can be used as described in MPEP 2124. However, its use is limited and specific.
The MPEP states: “References which do not qualify as prior art because they postdate the claimed invention may be relied upon to show the level of ordinary skill in the art at or around the time the invention was made.” This means that while such references cannot be used to show anticipation or obviousness, they can provide valuable context about the state of the art.
For example, a textbook published after the filing date might be cited to explain a well-known principle or technique that was already established at the time of the invention, even if it wasn’t explicitly documented in prior art references available at the time of filing.
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