What is the difference between the exceptions in 35 U.S.C. 102(b)(1) and 102(b)(2)?

The exceptions in 35 U.S.C. 102(b)(1) and 102(b)(2) serve different purposes and apply to different types of prior art. Here’s a comparison:

35 U.S.C. 102(b)(1) Exceptions:

• Apply to disclosures that would be prior art under 35 U.S.C. 102(a)(1)
• Cover public disclosures made within one year before the effective filing date
• Include exceptions for inventor’s own disclosures and intervening disclosures by third parties

35 U.S.C. 102(b)(2) Exceptions:

• Apply to disclosures in patent documents that would be prior art under 35 U.S.C. 102(a)(2)
• Cover U.S. patents, U.S. patent application publications, and WIPO published applications
• Include exceptions for inventor-originated disclosures, intervening disclosures, and common ownership

The MPEP states: “Potential references are not prior art under 35 U.S.C. 102(a)(2) if one of the three exception provisions of 35 U.S.C. 102(b)(2) applies.” This highlights the importance of understanding these exceptions in determining what constitutes prior art under the AIA system.

To learn more:

• 102(b)(1)
• 102(b)(2)
• prior art exceptions
• AIA
• patent law