How are non-written disclosures treated as prior art in international patent applications?

Non-written disclosures, such as oral disclosures, use, or exhibitions, are addressed in MPEP 1878.01(a) and PCT Rule 64.2. These disclosures are generally not considered part of the prior art if:

1. The non-written disclosure occurred before the relevant date
2. The date of the non-written disclosure is indicated in a written disclosure
3. The written disclosure was made available to the public on or after the relevant date

However, the MPEP notes: “Nevertheless, the international preliminary examination report shall call attention to such non-written disclosure in the manner provided for in Rule 70.9.”

This means that while non-written disclosures may not be used to challenge novelty or inventive step, they should still be mentioned in the examination report.

To learn more:

• non-written disclosures
• prior art
• international patent application
• PCT