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

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.

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.