Can a patent with common inventors be used as prior art under pre-AIA 35 U.S.C. 102(e)?
Yes, a patent with common inventors can be used as prior art under pre-AIA 35 U.S.C. 102(e) if the inventive entities are not identical. The MPEP clarifies this in MPEP 2136.04:
“The fact that the application and reference have one or more inventors in common is immaterial.”
This means that even if there are overlapping inventors, as long as the inventive entities are different (i.e., not all inventors are the same), the reference can be considered “by another” and used as prior art under pre-AIA 35 U.S.C. 102(e).
To learn more:
Topics:
MPEP 2100 - Patentability,
MPEP 2136.04 - Different Inventive Entity; Meaning Of "By Another",
Patent Law,
Patent Procedure