What is the difference between AIA 35 U.S.C. 102(a)(1) and 102(a)(2) prior art?
AIA 35 U.S.C. 102(a)(1) and 102(a)(2) define two different categories of prior art:
- 35 U.S.C. 102(a)(1) covers disclosures available to the public before the effective filing date of the claimed invention. This includes patents, printed publications, public use, on sale, or otherwise available to the public.
- 35 U.S.C. 102(a)(2) covers U.S. patents, U.S. patent application publications, and certain WIPO published international applications that were effectively filed before the effective filing date of the claimed invention, even if they were not yet publicly available.
The MPEP provides an example illustrating this distinction:
“Note that in accordance with compact prosecution, it is appropriate in Example 2 for the examiner to reject under both sections of 35 U.S.C. 102(a) because the U.S. patent document reference has a public availability date (that is, either a publication date or an issue date) within the grace period.”
This means that a single reference might qualify as prior art under both 35 U.S.C. 102(a)(1) and 102(a)(2), and examiners may make rejections under both sections to ensure comprehensive examination.
To learn more:
Topics:
MPEP 2100 - Patentability,
MPEP 2155.01 - Showing That The Disclosure Was Made By The Inventor Or A Joint Inventor,
Patent Law,
Patent Procedure