How do admissions affect anticipation and obviousness determinations?

This page is an FAQ based on guidance from the Manual of Patent Examining Procedure. It is provided as guidance, with links to the ground truth sources. This is information only: it is not legal advice.

Admissions by an applicant can significantly impact both anticipation and obviousness determinations in patent examination. As stated in MPEP 2152.03:

“A statement by an applicant in the specification or made during prosecution identifying the work of another as ‘prior art’ is an admission which can be relied upon for both anticipation and obviousness determinations, regardless of whether the admitted prior art would otherwise qualify as prior art under AIA 35 U.S.C. 102.“

This means that:

• For anticipation, an admission can be used to show that a claimed invention lacks novelty.
• For obviousness, an admission can be combined with other prior art references to demonstrate that a claimed invention would have been obvious to a person of ordinary skill in the art.

Examiners can use these admissions even if the admitted prior art wouldn’t qualify under the statutory definitions of prior art in 35 U.S.C. 102.