How does the AIA 35 U.S.C. 102(b)(2)(C) exception differ from pre-AIA 35 U.S.C. 103(c)?
How does the AIA 35 U.S.C. 102(b)(2)(C) exception differ from pre-AIA 35 U.S.C. 103(c)?
The AIA 35 U.S.C. 102(b)(2)(C) exception and the pre-AIA 35 U.S.C. 103(c) have some key differences:
- Scope of Application: AIA 35 U.S.C. 102(b)(2)(C) applies to both novelty (35 U.S.C. 102) and obviousness (35 U.S.C. 103) rejections, while pre-AIA 35 U.S.C. 103(c) only applied to obviousness rejections.
- Timing of Common Ownership: Under AIA, common ownership must exist not later than the effective filing date of the claimed invention. Pre-AIA required common ownership at the time the claimed invention was made.
- Subject Matter Covered: AIA covers a broader range of subject matter, including patents, patent application publications, and WIPO published applications. Pre-AIA was more limited in scope.
As stated in MPEP 717.02:
The AIA 35 U.S.C. 102(b)(2)(C) exception is significantly different from the pre-AIA 35 U.S.C. 103(c) exception in that the AIA 35 U.S.C. 102(b)(2)(C) exception applies to anticipation rejections (35 U.S.C. 102) and obviousness rejections (35 U.S.C. 103), whereas the pre-AIA 35 U.S.C. 103(c) exception applied only to obviousness rejections.
Understanding these differences is crucial for patent practitioners dealing with applications filed before and after the AIA implementation date.
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