Can post-filing date references be used to demonstrate lack of enablement?
Generally, post-filing date references should not be used to demonstrate lack of enablement. MPEP 2164.05(a) states: “In general, the examiner should not use post-filing date references to demonstrate that a patent is not enabled.“
However, there are exceptions to this rule. The MPEP explains: “Exceptions to this rule could occur if a later-dated reference provides evidence of what one skilled in the art would have known on or before the effective filing date of the patent application.” This means that a post-filing date reference might be used if it sheds light on the state of knowledge at the time of filing.
The MPEP provides an example: “If a publication demonstrates that those of ordinary skill in the art would find that a particular invention was not enabled years after the filing date, the publication would be evidence that the claimed invention was not possible at the time of filing.” This illustrates how a later publication can sometimes be relevant to enablement considerations.
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