What does “by another” mean in the context of pre-AIA 35 U.S.C. 102(e)?

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.

In the context of pre-AIA 35 U.S.C. 102(e), “by another” means a different inventive entity. The MPEP clarifies this in MPEP 2136.04:

“‘Another’ means other than applicants, In re Land, 368 F.2d 866, 151 USPQ 621 (CCPA 1966), in other words, a different inventive entity. The inventive entity is different if not all inventors are the same.”

This means that even if an application and a reference have one or more inventors in common, the reference can still be considered “by another” if the inventive entities are not identical.