MPEP § 2126.01 — Date of Availability of a Patent as a Reference (Annotated Rules)
§2126.01 Date of Availability of a Patent as a Reference
This page consolidates and annotates all enforceable requirements under MPEP § 2126.01, 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.
Date of Availability of a Patent as a Reference
This section addresses Date of Availability of a Patent as a Reference. Primary authority: 35 U.S.C. 102, 35 U.S.C. 3.06, and 37 CFR 3.06. Contains: 2 statements.
Key Rules
Prior Art Under AIA 35 U.S.C. 102 (MPEP 2150-2159)
Note that MPEP § 901.05 summarizes in tabular form dates of patenting for many foreign patents. For a list of cases that discuss the date of patenting countries for purposes of pre-AIA 35 U.S.C. 102 in particular, see Chisum, Patents § 3.06[4] n.2.
Citations
| Primary topic | Citation |
|---|---|
| Prior Art Under AIA 35 U.S.C. 102 (MPEP 2150-2159) | 35 U.S.C. § 102 |
| Prior Art Under AIA 35 U.S.C. 102 (MPEP 2150-2159) | 37 CFR § 3.06 |
| Prior Art Under AIA 35 U.S.C. 102 (MPEP 2150-2159) | MPEP § 901.05 |
| – | In re Ekenstam, 256 F.2d 321, 118 USPQ 349 (CCPA 1958) |
| – | In re Monks, 588 F.2d 308, 200 USPQ 129 (CCPA 1978) |
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.
Official MPEP § 2126.01 — Date of Availability of a Patent as a Reference
Source: USPTO2126.01 Date of Availability of a Patent as a Reference [R-11.2013]
DATE FOREIGN PATENT IS EFFECTIVE AS A REFERENCE IS USUALLY THE DATE PATENT RIGHTS ARE FORMALLY AWARDED TO ITS APPLICANTThe date the patent is available as a reference is generally the date that the patent becomes enforceable. This date is the date the sovereign formally bestows patent rights to the applicant. In re Monks, 588 F.2d 308, 200 USPQ 129 (CCPA 1978). There is an exception to this rule when the patent is secret as of the date the rights are awarded. In re Ekenstam, 256 F.2d 321, 118 USPQ 349 (CCPA 1958).
Note that MPEP § 901.05 summarizes in tabular form dates of patenting for many foreign patents. For a list of cases that discuss the date of patenting countries for purposes of pre-AIA 35 U.S.C. 102 in particular, see Chisum, Patents § 3.06[4] n.2.