What are the prior art exceptions under AIA 35 U.S.C. 102(b)(1) and (2)?

The prior art exceptions under AIA 35 U.S.C. 102(b)(1) and (2) provide circumstances where certain disclosures are not considered prior art. These exceptions are:

• Under 35 U.S.C. 102(b)(1), a disclosure made one year or less before the effective filing date is not prior art if:
  1. The disclosure was made by the inventor, joint inventor, or someone who obtained the subject matter from them.
  2. The subject matter was publicly disclosed by the inventor, joint inventor, or someone who obtained it from them before the disclosure in question.
• Under 35 U.S.C. 102(b)(2), a disclosure is not prior art if:
  1. The subject matter was obtained from the inventor or joint inventor.
  2. The subject matter was publicly disclosed by the inventor, joint inventor, or someone who obtained it from them before the effective filing date.
  3. The subject matter and the claimed invention were owned by or subject to an obligation of assignment to the same person not later than the effective filing date.

As stated in the MPEP: The Office has provided a mechanism in 37 CFR 1.130 for filing an affidavit or declaration to establish that a disclosure made no earlier than one year before the effective filing date of the claimed invention is not prior art under 35 U.S.C. 102(a) due to an exception in 35 U.S.C. 102(b).

To learn more:

• AIA
• prior art exceptions
• 35 U.S.C. 102(b)
• disclosure
• effective filing date

To learn more:

• 35 U.S.C. 102(b)