MPEP § 2152.02(a) — Patented (Annotated Rules)

§2152.02(a) Patented

USPTO MPEP version: BlueIron's Update: 2026-01-10

This page consolidates and annotates all enforceable requirements under MPEP § 2152.02(a), including statutory authority, regulatory rules, examiner guidance, and practice notes. It is provided as guidance, with links to the ground truth sources. This is information only, it is not legal advice.

Patented

This section addresses Patented. Primary authority: 35 U.S.C. 100, 35 U.S.C. 102, and 35 U.S.C. 102(a)(1). Contains: 1 permission and 8 other statements.

Key Rules

Topic

Otherwise Available to Public (MPEP 2152.02(e))

5 rules
StatutoryInformativeAlways
[mpep-2152-02-a-7c059d58880d16a8a27f3f23]
Exception for Secret Patents as of Grant Date
Note:
This rule allows a patent to be considered prior art even if it was secret at the grant date, provided it became available to the public by being laid open or printed.

AIA 35 U.S.C. 102(a)(1) indicates that a prior patent of a claimed invention will preclude the grant of a subsequent patent on the claimed invention. This means that if a claimed invention was patented in this or a foreign country before the effective filing date of the claimed invention, AIA 35 U.S.C. 102(a)(1) precludes the grant of a patent on the claimed invention. The effective date of the patent for purposes of determining whether the patent qualifies as prior art under AIA 35 U.S.C. 102(a)(1) is the grant date of the patent. There is an exception to this rule if the patent is secret as of the date the rights are awarded. See In re Ekenstam, 256 F.2d 321, 323, 118 USPQ 349, 353 (CCPA 1958); see also MPEP § 2126.01. In such situations, the patent is available as prior art as of the date the patent was made available to the public by being laid open for public inspection or disseminated in printed form. See In re Carlson, 983 F.2d 1032, 1037, 25 USPQ2d 1207 (Fed. Cir. 1992); see also MPEP § 2126. The phrase “patented” in AIA 35 U.S.C. 102(a)(1) has the same meaning as “patented” in pre-AIA 35 U.S.C. 102(a) and (b). For a discussion of “patented” as used in pre-AIA 35 U.S.C. 102(a) and (b), see generally MPEP § 2126.

Jump to MPEP SourceOtherwise Available to Public (MPEP 2152.02(e))AIA Effective DatesDetermining Whether Application Is AIA or Pre-AIA
StatutoryInformativeAlways
[mpep-2152-02-a-77ab91d17a7af904da3d223b]
Patent as Prior Art Despite Secrecy
Note:
A patent can serve as prior art even if it was secret, becoming available upon public inspection or printing.

AIA 35 U.S.C. 102(a)(1) indicates that a prior patent of a claimed invention will preclude the grant of a subsequent patent on the claimed invention. This means that if a claimed invention was patented in this or a foreign country before the effective filing date of the claimed invention, AIA 35 U.S.C. 102(a)(1) precludes the grant of a patent on the claimed invention. The effective date of the patent for purposes of determining whether the patent qualifies as prior art under AIA 35 U.S.C. 102(a)(1) is the grant date of the patent. There is an exception to this rule if the patent is secret as of the date the rights are awarded. See In re Ekenstam, 256 F.2d 321, 323, 118 USPQ 349, 353 (CCPA 1958); see also MPEP § 2126.01. In such situations, the patent is available as prior art as of the date the patent was made available to the public by being laid open for public inspection or disseminated in printed form. See In re Carlson, 983 F.2d 1032, 1037, 25 USPQ2d 1207 (Fed. Cir. 1992); see also MPEP § 2126. The phrase “patented” in AIA 35 U.S.C. 102(a)(1) has the same meaning as “patented” in pre-AIA 35 U.S.C. 102(a) and (b). For a discussion of “patented” as used in pre-AIA 35 U.S.C. 102(a) and (b), see generally MPEP § 2126.

Jump to MPEP SourceOtherwise Available to Public (MPEP 2152.02(e))AIA Effective DatesDetermining Whether Application Is AIA or Pre-AIA
StatutoryInformativeAlways
[mpep-2152-02-a-5a89d9631a6575f505bdfd9b]
Patent Available as Prior Art Upon Public Inspection
Note:
A patent is considered prior art as of the date it was made available to the public through being laid open for inspection or printed.

AIA 35 U.S.C. 102(a)(1) indicates that a prior patent of a claimed invention will preclude the grant of a subsequent patent on the claimed invention. This means that if a claimed invention was patented in this or a foreign country before the effective filing date of the claimed invention, AIA 35 U.S.C. 102(a)(1) precludes the grant of a patent on the claimed invention. The effective date of the patent for purposes of determining whether the patent qualifies as prior art under AIA 35 U.S.C. 102(a)(1) is the grant date of the patent. There is an exception to this rule if the patent is secret as of the date the rights are awarded. See In re Ekenstam, 256 F.2d 321, 323, 118 USPQ 349, 353 (CCPA 1958); see also MPEP § 2126.01. In such situations, the patent is available as prior art as of the date the patent was made available to the public by being laid open for public inspection or disseminated in printed form. See In re Carlson, 983 F.2d 1032, 1037, 25 USPQ2d 1207 (Fed. Cir. 1992); see also MPEP § 2126. The phrase “patented” in AIA 35 U.S.C. 102(a)(1) has the same meaning as “patented” in pre-AIA 35 U.S.C. 102(a) and (b). For a discussion of “patented” as used in pre-AIA 35 U.S.C. 102(a) and (b), see generally MPEP § 2126.

Jump to MPEP SourceOtherwise Available to Public (MPEP 2152.02(e))Otherwise Available to the Public (MPEP 2152.02(e))AIA Effective Dates
StatutoryInformativeAlways
[mpep-2152-02-a-86f4effcca788c551539bb8b]
Patent as Prior Art Requirement
Note:
A patent is considered prior art if it was granted before the effective filing date of a claimed invention.

AIA 35 U.S.C. 102(a)(1) indicates that a prior patent of a claimed invention will preclude the grant of a subsequent patent on the claimed invention. This means that if a claimed invention was patented in this or a foreign country before the effective filing date of the claimed invention, AIA 35 U.S.C. 102(a)(1) precludes the grant of a patent on the claimed invention. The effective date of the patent for purposes of determining whether the patent qualifies as prior art under AIA 35 U.S.C. 102(a)(1) is the grant date of the patent. There is an exception to this rule if the patent is secret as of the date the rights are awarded. See In re Ekenstam, 256 F.2d 321, 323, 118 USPQ 349, 353 (CCPA 1958); see also MPEP § 2126.01. In such situations, the patent is available as prior art as of the date the patent was made available to the public by being laid open for public inspection or disseminated in printed form. See In re Carlson, 983 F.2d 1032, 1037, 25 USPQ2d 1207 (Fed. Cir. 1992); see also MPEP § 2126. The phrase “patented” in AIA 35 U.S.C. 102(a)(1) has the same meaning as “patented” in pre-AIA 35 U.S.C. 102(a) and (b). For a discussion of “patented” as used in pre-AIA 35 U.S.C. 102(a) and (b), see generally MPEP § 2126.

Jump to MPEP SourceOtherwise Available to Public (MPEP 2152.02(e))AIA Effective DatesDetermining Whether Application Is AIA or Pre-AIA
StatutoryPermittedAlways
[mpep-2152-02-a-4139a5776be298a59d192258]
Grant Date as Prior Art for Described Invention
Note:
The grant date of a patent can serve as the prior art date if the invention is described but not claimed, provided the patent was publicly available on that date.

Although an invention may be described in a patent and not claimed therein, the grant date would also be the applicable prior art date for purposes of relying on the subject matter disclosed therein as “described in a printed publication,” provided that the patent was made available to the public on its grant date. Note that a U.S. patent that issues after the effective filing date of a claimed invention and is not available as prior art against that invention under AIA 35 U.S.C. 102(a)(1) could be available as prior art under AIA 35 U.S.C. 102(a)(2).

Jump to MPEP SourceOtherwise Available to Public (MPEP 2152.02(e))AIA 102(a)(1) – Prior Art Categories (MPEP 2152.02)Otherwise Available to the Public (MPEP 2152.02(e))
Topic

Determining Whether Application Is AIA or Pre-AIA

2 rules
StatutoryInformativeAlways
[mpep-2152-02-a-45d8a4d638515598b9325819]
Prior Patent Precludes Grant of Subsequent Patent
Note:
If a claimed invention was patented in this or a foreign country before the effective filing date, a patent on that invention cannot be granted.

AIA 35 U.S.C. 102(a)(1) indicates that a prior patent of a claimed invention will preclude the grant of a subsequent patent on the claimed invention. This means that if a claimed invention was patented in this or a foreign country before the effective filing date of the claimed invention, AIA 35 U.S.C. 102(a)(1) precludes the grant of a patent on the claimed invention. The effective date of the patent for purposes of determining whether the patent qualifies as prior art under AIA 35 U.S.C. 102(a)(1) is the grant date of the patent. There is an exception to this rule if the patent is secret as of the date the rights are awarded. See In re Ekenstam, 256 F.2d 321, 323, 118 USPQ 349, 353 (CCPA 1958); see also MPEP § 2126.01. In such situations, the patent is available as prior art as of the date the patent was made available to the public by being laid open for public inspection or disseminated in printed form. See In re Carlson, 983 F.2d 1032, 1037, 25 USPQ2d 1207 (Fed. Cir. 1992); see also MPEP § 2126. The phrase “patented” in AIA 35 U.S.C. 102(a)(1) has the same meaning as “patented” in pre-AIA 35 U.S.C. 102(a) and (b). For a discussion of “patented” as used in pre-AIA 35 U.S.C. 102(a) and (b), see generally MPEP § 2126.

Jump to MPEP SourceDetermining Whether Application Is AIA or Pre-AIAAIA 102(a)(1) – Prior Art Categories (MPEP 2152.02)Patented Prior Art (MPEP 2152.02(a))
StatutoryInformativeAlways
[mpep-2152-02-a-df28d752a6886ff034064f41]
Patent as Prior Art Under AIA
Note:
A U.S. patent issued after the effective filing date of an invention can be considered prior art under AIA rules even if it does not claim the invention.

Although an invention may be described in a patent and not claimed therein, the grant date would also be the applicable prior art date for purposes of relying on the subject matter disclosed therein as “described in a printed publication,” provided that the patent was made available to the public on its grant date. Note that a U.S. patent that issues after the effective filing date of a claimed invention and is not available as prior art against that invention under AIA 35 U.S.C. 102(a)(1) could be available as prior art under AIA 35 U.S.C. 102(a)(2).

Jump to MPEP SourceDetermining Whether Application Is AIA or Pre-AIAAIA 102(a)(2) – Earlier Filed Applications (MPEP 2154)Patented Prior Art (MPEP 2152.02(a))
Topic

AIA 102(a)(1) – Prior Art Categories (MPEP 2152.02)

2 rules
StatutoryInformativeAlways
[mpep-2152-02-a-f1179e5362c9227c7396ae4c]
Same Meaning of Patented in AIA and Pre-AIA
Note:
The term 'patented' in the new AIA 35 U.S.C. 102(a)(1) has the same meaning as in the old pre-AIA 35 U.S.C. 102(a) and (b).

AIA 35 U.S.C. 102(a)(1) indicates that a prior patent of a claimed invention will preclude the grant of a subsequent patent on the claimed invention. This means that if a claimed invention was patented in this or a foreign country before the effective filing date of the claimed invention, AIA 35 U.S.C. 102(a)(1) precludes the grant of a patent on the claimed invention. The effective date of the patent for purposes of determining whether the patent qualifies as prior art under AIA 35 U.S.C. 102(a)(1) is the grant date of the patent. There is an exception to this rule if the patent is secret as of the date the rights are awarded. See In re Ekenstam, 256 F.2d 321, 323, 118 USPQ 349, 353 (CCPA 1958); see also MPEP § 2126.01. In such situations, the patent is available as prior art as of the date the patent was made available to the public by being laid open for public inspection or disseminated in printed form. See In re Carlson, 983 F.2d 1032, 1037, 25 USPQ2d 1207 (Fed. Cir. 1992); see also MPEP § 2126. The phrase “patented” in AIA 35 U.S.C. 102(a)(1) has the same meaning as “patented” in pre-AIA 35 U.S.C. 102(a) and (b). For a discussion of “patented” as used in pre-AIA 35 U.S.C. 102(a) and (b), see generally MPEP § 2126.

Jump to MPEP SourceAIA 102(a)(1) – Prior Art Categories (MPEP 2152.02)Patented Prior Art (MPEP 2152.02(a))Prior Art Under AIA 35 U.S.C. 102 (MPEP 2150-2159)
StatutoryInformativeAlways
[mpep-2152-02-a-3c8161f51680ee4b243df49c]
Patented Invention as Prior Art Requirement
Note:
The rule requires that a prior patented invention must be considered as prior art under AIA 35 U.S.C. 102(a)(1) if it was patented before the effective filing date of the claimed invention.

AIA 35 U.S.C. 102(a)(1) indicates that a prior patent of a claimed invention will preclude the grant of a subsequent patent on the claimed invention. This means that if a claimed invention was patented in this or a foreign country before the effective filing date of the claimed invention, AIA 35 U.S.C. 102(a)(1) precludes the grant of a patent on the claimed invention. The effective date of the patent for purposes of determining whether the patent qualifies as prior art under AIA 35 U.S.C. 102(a)(1) is the grant date of the patent. There is an exception to this rule if the patent is secret as of the date the rights are awarded. See In re Ekenstam, 256 F.2d 321, 323, 118 USPQ 349, 353 (CCPA 1958); see also MPEP § 2126.01. In such situations, the patent is available as prior art as of the date the patent was made available to the public by being laid open for public inspection or disseminated in printed form. See In re Carlson, 983 F.2d 1032, 1037, 25 USPQ2d 1207 (Fed. Cir. 1992); see also MPEP § 2126. The phrase “patented” in AIA 35 U.S.C. 102(a)(1) has the same meaning as “patented” in pre-AIA 35 U.S.C. 102(a) and (b). For a discussion of “patented” as used in pre-AIA 35 U.S.C. 102(a) and (b), see generally MPEP § 2126.

Jump to MPEP SourceAIA 102(a)(1) – Prior Art Categories (MPEP 2152.02)Patented Prior Art (MPEP 2152.02(a))Prior Art Under AIA 35 U.S.C. 102 (MPEP 2150-2159)
Topic

Statutory Authority for Examination

1 rules
StatutoryInformativeAlways
[mpep-2152-02-a-84e25f7b50c4071b04a69f93]
Patented Application Examination Under FITF
Note:
This rule outlines the examination procedures for applications subject to the first inventor to file provisions of the AIA, as set forth in 35 U.S.C. 100.

[Editor Note: This MPEP section is only applicable to applications subject to examination under the first inventor to file (FITF) provisions of the AIA as set forth in 35 U.S.C. 100 (note). See MPEP § 2159 et seq. to determine whether an application is subject to examination under the FITF provisions, and MPEP § 2131MPEP § 2138 for examination of applications subject to pre-AIA 35 U.S.C. 102.]

Jump to MPEP SourceStatutory Authority for ExaminationExamination ProceduresNovelty / Prior Art
Topic

AIA Effective Dates

1 rules
StatutoryInformativeAlways
[mpep-2152-02-a-e51aecd25c0ba96e3f318e0b]
Effective Date for Prior Art Determination
Note:
The patent grant date is used to determine if a patent qualifies as prior art under AIA 35 U.S.C. 102(a)(1).

AIA 35 U.S.C. 102(a)(1) indicates that a prior patent of a claimed invention will preclude the grant of a subsequent patent on the claimed invention. This means that if a claimed invention was patented in this or a foreign country before the effective filing date of the claimed invention, AIA 35 U.S.C. 102(a)(1) precludes the grant of a patent on the claimed invention. The effective date of the patent for purposes of determining whether the patent qualifies as prior art under AIA 35 U.S.C. 102(a)(1) is the grant date of the patent. There is an exception to this rule if the patent is secret as of the date the rights are awarded. See In re Ekenstam, 256 F.2d 321, 323, 118 USPQ 349, 353 (CCPA 1958); see also MPEP § 2126.01. In such situations, the patent is available as prior art as of the date the patent was made available to the public by being laid open for public inspection or disseminated in printed form. See In re Carlson, 983 F.2d 1032, 1037, 25 USPQ2d 1207 (Fed. Cir. 1992); see also MPEP § 2126. The phrase “patented” in AIA 35 U.S.C. 102(a)(1) has the same meaning as “patented” in pre-AIA 35 U.S.C. 102(a) and (b). For a discussion of “patented” as used in pre-AIA 35 U.S.C. 102(a) and (b), see generally MPEP § 2126.

Jump to MPEP SourceAIA Effective DatesDetermining Whether Application Is AIA or Pre-AIAAIA Overview and Effective Dates

Citations

Primary topicCitation
Statutory Authority for Examination35 U.S.C. § 100
Statutory Authority for Examination35 U.S.C. § 102
AIA 102(a)(1) – Prior Art Categories (MPEP 2152.02)
AIA Effective Dates
Determining Whether Application Is AIA or Pre-AIA
Otherwise Available to Public (MPEP 2152.02(e))
35 U.S.C. § 102(a)
AIA 102(a)(1) – Prior Art Categories (MPEP 2152.02)
AIA Effective Dates
Determining Whether Application Is AIA or Pre-AIA
Otherwise Available to Public (MPEP 2152.02(e))
35 U.S.C. § 102(a)(1)
Determining Whether Application Is AIA or Pre-AIA
Otherwise Available to Public (MPEP 2152.02(e))
35 U.S.C. § 102(a)(2)
AIA 102(a)(1) – Prior Art Categories (MPEP 2152.02)
AIA Effective Dates
Determining Whether Application Is AIA or Pre-AIA
Otherwise Available to Public (MPEP 2152.02(e))
MPEP § 2126
AIA 102(a)(1) – Prior Art Categories (MPEP 2152.02)
AIA Effective Dates
Determining Whether Application Is AIA or Pre-AIA
Otherwise Available to Public (MPEP 2152.02(e))
MPEP § 2126.01
Statutory Authority for ExaminationMPEP § 2131
Statutory Authority for ExaminationMPEP § 2138
Statutory Authority for ExaminationMPEP § 2159
AIA 102(a)(1) – Prior Art Categories (MPEP 2152.02)
AIA Effective Dates
Determining Whether Application Is AIA or Pre-AIA
Otherwise Available to Public (MPEP 2152.02(e))
In re Carlson, 983 F.2d 1032, 1037, 25 USPQ2d 1207 (Fed. Cir. 1992)
AIA 102(a)(1) – Prior Art Categories (MPEP 2152.02)
AIA Effective Dates
Determining Whether Application Is AIA or Pre-AIA
Otherwise Available to Public (MPEP 2152.02(e))
In re Ekenstam, 256 F.2d 321, 323, 118 USPQ 349, 353 (CCPA 1958)

Source Text from USPTO’s MPEP

This is an exact copy of the MPEP from the USPTO. It is here for your reference to see the section in context.

BlueIron Last Updated: 2026-01-10