When can later publications be used as references in patent examination?
Later publications can be used as references in patent examination under specific circumstances, primarily to show universal facts or scientific truisms. The MPEP 2124 provides several examples:
- To show that undue experimentation would have been required as of the filing date
- To demonstrate whether a parameter was critical or not
- To prove that a statement in the specification was inaccurate
- To show that the invention was inoperative or lacked utility
- To demonstrate that a claim was indefinite
- To show known characteristics of prior art products
It’s important to note that these later publications are used to illuminate facts that were true at the time of filing, not to introduce new information that wasn’t available then.
To learn more:
Topics:
MPEP 2100 - Patentability,
MPEP 2124 - Exception To The Rule That The Reference Must Be Prior Art,
Patent Law,
Patent Procedure