Can non-patent literature be used as prior art in ex parte reexamination requests?

Yes, non-patent literature can be used as prior art in ex parte reexamination requests, provided it qualifies as a “printed publication.” The MPEP 2244 states:

“The prior art that may be submitted under 35 U.S.C. 302 is limited to ‘patents or printed publications.'”

Printed publications can include various forms of non-patent literature such as:

  • Scientific journals
  • Technical manuals
  • Conference proceedings
  • Textbooks
  • Publicly accessible websites (with a verifiable publication date)

It’s important to note that the printed publication must have been publicly accessible before the effective filing date of the patent under reexamination.

To learn more:

Topics: MPEP 2200 - Citation Of Prior Art And Ex Parte Reexamination Of Patents, MPEP 2244 - Prior Art On Which The Determination Is Based In Requests Filed Under 35 U.S.C. 302, Patent Law, Patent Procedure
Tags: ex parte reexamination, non-patent literature, printed publications