How can an inventor prove a prior public disclosure for the AIA 35 U.S.C. 102(b)(2)(B) exception?

To prove a prior public disclosure for the AIA 35 U.S.C. 102(b)(2)(B) exception, inventors can use affidavits or declarations. The MPEP provides guidance on this:

“MPEP § 2155.02 discusses the use of affidavits or declarations to show a prior public disclosure of the subject matter by the inventor or a joint inventor, and MPEP § 2155.03 discusses the use of affidavits or declarations to show a prior public disclosure of the subject matter by another who obtained the subject matter disclosed directly or indirectly from the inventor or a joint inventor.“

Key points to remember:

• Affidavits or declarations can be used to show prior public disclosure by the inventor, joint inventor, or someone who obtained the subject matter from them.
• The affidavit or declaration should provide evidence of the public disclosure and its date.
• The disclosed subject matter must be the same as the subject matter in the intervening U.S. patent document for the exception to apply.
• The mode of disclosure (e.g., publication, public use, sale) doesn’t need to match the intervening U.S. patent document.

It’s important to consult MPEP § 2155.02 and MPEP § 2155.03 for detailed information on preparing these affidavits or declarations.

To learn more:

• AIA
• prior art exception
• public disclosure
• affidavits
• declarations