What constitutes a “patent” for rejection purposes under 35 U.S.C. 102(a) or pre-AIA 35 U.S.C. 102(a) and (b)?

This page is an FAQ based on guidance from the Manual of Patent Examining Procedure. It is provided as guidance, with links to the ground truth sources. This is information only: it is not legal advice.

The designation of a document as a “patent” by a foreign country does not automatically qualify it as a patent for rejection purposes under U.S. patent law. As stated in MPEP 2126:

“It is the substance of the rights conferred and the way information within the ‘patent’ is controlled that is determinative.”

This means that the key factors in determining whether a document can be used as a “patent” for rejection are:

• The nature of the rights granted by the document
• How the information within the document is controlled and made accessible

The accessibility of the document to the public is crucial in determining its status as prior art.