Does the manner of disclosure matter for invoking the 35 U.S.C. 102(b)(1)(B) or 102(b)(2)(B) exceptions?
No, the manner or mode of disclosure is not critical when invoking the exceptions under 35 U.S.C. 102(b)(1)(B) or 102(b)(2)(B). The MPEP clarifies:
“The manner of disclosure of subject matter referenced in an affidavit or declaration under 37 CFR 1.130(b) is not critical.”
This means:
- The subject matter doesn’t need to be disclosed in the same manner or using the same words.
- There’s no requirement for a verbatim or ipsissimis verbis disclosure.
- The mode of disclosure (e.g., patenting, publication, public use, sale activity) doesn’t need to be the same.
The MPEP provides an example:
“The inventor or a joint inventor may have publicly disclosed the subject matter in question via a slide presentation at a scientific meeting, while the intervening disclosure of the subject matter may have been made in a journal article.”
Such differences in the mode of disclosure or the words used to describe the subject matter will not prevent an inventor from submitting an affidavit or declaration under 37 CFR 1.130(b) to disqualify the intervening disclosure as prior art.
To learn more: