What is the difference between 35 U.S.C. 102(a)(1) and 102(a)(2)?

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 main difference between 35 U.S.C. 102(a)(1) and 102(a)(2) lies in the types of prior art they cover:

• 35 U.S.C. 102(a)(1) covers public disclosures, including patents, printed publications, public use, sales, or other public availability of the claimed invention before the effective filing date.
• 35 U.S.C. 102(a)(2) specifically covers U.S. patents, U.S. patent application publications, and international patent applications published under the Patent Cooperation Treaty, which have an effectively filed date before the effective filing date of the claimed invention.

As stated in the MPEP, “First, the examiner should consider whether the reference qualifies as prior art under 35 U.S.C. 102(a)(1). Next the examiner must determine if any exceptions in 35 U.S.C. 102(b)(1) apply.” The same process is then applied for 102(a)(2) and its exceptions under 102(b)(2).