MPEP § 2154.01 — Prior Art Under AIA 35 U.S.C. 102(a)(2) “U.S. Patent Documents” (Annotated Rules)
§2154.01 Prior Art Under AIA 35 U.S.C. 102(a)(2) “U.S. Patent Documents”
This page consolidates and annotates all enforceable requirements under MPEP § 2154.01, 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.
Prior Art Under AIA 35 U.S.C. 102(a)(2) “U.S. Patent Documents”
This section addresses Prior Art Under AIA 35 U.S.C. 102(a)(2) “U.S. Patent Documents”. Primary authority: 35 U.S.C. 100, 35 U.S.C. 102, and 35 U.S.C. 102(a)(2). Contains: 3 permissions and 5 other statements.
Key Rules
AIA 102(a)(2) – Earlier Filed Applications (MPEP 2154)
AIA 35 U.S.C. 102(a)(2) sets forth three types of patent documents that are available as prior art as of the date they were effectively filed with respect to the subject matter relied upon in the document if they name another inventor: (1) U.S. patents; (2) U.S. patent application publications; and (3) certain WIPO published applications. These documents are referred to collectively as “U.S. patent documents.” These documents may have different prior art effects under pre-AIA 35 U.S.C. 102(e) than under AIA 35 U.S.C. 102(a)(2). Note that a U.S. patent document may also be prior art under AIA 35 U.S.C. 102(a)(1) if its issue or publication date is before the effective filing date of the claimed invention in question.
AIA 35 U.S.C. 102(a)(2) sets forth three types of patent documents that are available as prior art as of the date they were effectively filed with respect to the subject matter relied upon in the document if they name another inventor: (1) U.S. patents; (2) U.S. patent application publications; and (3) certain WIPO published applications. These documents are referred to collectively as “U.S. patent documents.” These documents may have different prior art effects under pre-AIA 35 U.S.C. 102(e) than under AIA 35 U.S.C. 102(a)(2). Note that a U.S. patent document may also be prior art under AIA 35 U.S.C. 102(a)(1) if its issue or publication date is before the effective filing date of the claimed invention in question.
If the issue date of the U.S. patent or publication date of the U.S. patent application publication or WIPO published application is not before the effective filing date of the claimed invention, it may be applicable as prior art under AIA 35 U.S.C. 102(a)(2) if it was “effectively filed” before the effective filing date of the claimed invention in question with respect to the subject matter relied upon to reject the claim. MPEP § 2152.01 discusses the “effective filing date” of a claimed invention. AIA 35 U.S.C. 102(d) sets forth the criteria to determine when subject matter described in a U.S. patent document was “effectively filed” for purposes of AIA 35 U.S.C. 102(a)(2).
Determining Whether Application Is AIA or Pre-AIA
AIA 35 U.S.C. 102(a)(2) sets forth three types of patent documents that are available as prior art as of the date they were effectively filed with respect to the subject matter relied upon in the document if they name another inventor: (1) U.S. patents; (2) U.S. patent application publications; and (3) certain WIPO published applications. These documents are referred to collectively as “U.S. patent documents.” These documents may have different prior art effects under pre-AIA 35 U.S.C. 102(e) than under AIA 35 U.S.C. 102(a)(2). Note that a U.S. patent document may also be prior art under AIA 35 U.S.C. 102(a)(1) if its issue or publication date is before the effective filing date of the claimed invention in question.
If the issue date of the U.S. patent or publication date of the U.S. patent application publication or WIPO published application is not before the effective filing date of the claimed invention, it may be applicable as prior art under AIA 35 U.S.C. 102(a)(2) if it was “effectively filed” before the effective filing date of the claimed invention in question with respect to the subject matter relied upon to reject the claim. MPEP § 2152.01 discusses the “effective filing date” of a claimed invention. AIA 35 U.S.C. 102(d) sets forth the criteria to determine when subject matter described in a U.S. patent document was “effectively filed” for purposes of AIA 35 U.S.C. 102(a)(2).
If the issue date of the U.S. patent or publication date of the U.S. patent application publication or WIPO published application is not before the effective filing date of the claimed invention, it may be applicable as prior art under AIA 35 U.S.C. 102(a)(2) if it was “effectively filed” before the effective filing date of the claimed invention in question with respect to the subject matter relied upon to reject the claim. MPEP § 2152.01 discusses the “effective filing date” of a claimed invention. AIA 35 U.S.C. 102(d) sets forth the criteria to determine when subject matter described in a U.S. patent document was “effectively filed” for purposes of AIA 35 U.S.C. 102(a)(2).
Prior Art Under AIA 35 U.S.C. 102 (MPEP 2150-2159)
[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 § 2131 – MPEP § 2138 for examination of applications subject to pre-AIA 35 U.S.C. 102.]
AIA 35 U.S.C. 102(a)(2) sets forth three types of patent documents that are available as prior art as of the date they were effectively filed with respect to the subject matter relied upon in the document if they name another inventor: (1) U.S. patents; (2) U.S. patent application publications; and (3) certain WIPO published applications. These documents are referred to collectively as “U.S. patent documents.” These documents may have different prior art effects under pre-AIA 35 U.S.C. 102(e) than under AIA 35 U.S.C. 102(a)(2). Note that a U.S. patent document may also be prior art under AIA 35 U.S.C. 102(a)(1) if its issue or publication date is before the effective filing date of the claimed invention in question.
Citations
| Primary topic | Citation |
|---|---|
| Prior Art Under AIA 35 U.S.C. 102 (MPEP 2150-2159) | 35 U.S.C. § 100 |
| Prior Art Under AIA 35 U.S.C. 102 (MPEP 2150-2159) | 35 U.S.C. § 102 |
| AIA 102(a)(2) – Earlier Filed Applications (MPEP 2154) Determining Whether Application Is AIA or Pre-AIA Prior Art Under AIA 35 U.S.C. 102 (MPEP 2150-2159) | 35 U.S.C. § 102(a)(1) |
| AIA 102(a)(2) – Earlier Filed Applications (MPEP 2154) Determining Whether Application Is AIA or Pre-AIA Prior Art Under AIA 35 U.S.C. 102 (MPEP 2150-2159) | 35 U.S.C. § 102(a)(2) |
| AIA 102(a)(2) – Earlier Filed Applications (MPEP 2154) Determining Whether Application Is AIA or Pre-AIA | 35 U.S.C. § 102(d) |
| AIA 102(a)(2) – Earlier Filed Applications (MPEP 2154) Determining Whether Application Is AIA or Pre-AIA Prior Art Under AIA 35 U.S.C. 102 (MPEP 2150-2159) | 35 U.S.C. § 102(e) |
| Prior Art Under AIA 35 U.S.C. 102 (MPEP 2150-2159) | MPEP § 2131 |
| Prior Art Under AIA 35 U.S.C. 102 (MPEP 2150-2159) | MPEP § 2138 |
| AIA 102(a)(2) – Earlier Filed Applications (MPEP 2154) Determining Whether Application Is AIA or Pre-AIA | MPEP § 2152.01 |
| Prior Art Under AIA 35 U.S.C. 102 (MPEP 2150-2159) | MPEP § 2159 |
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 § 2154.01 — Prior Art Under AIA 35 U.S.C. 102(a)(2) “U.S. Patent Documents”
Source: USPTO2154.01 Prior Art Under AIA 35 U.S.C. 102(a)(2) “U.S. Patent Documents” [R-11.2013]
[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 § 2131–MPEP § 2138 for examination of applications subject to pre-AIA 35 U.S.C. 102.]
AIA 35 U.S.C. 102(a)(2) sets forth three types of patent documents that are available as prior art as of the date they were effectively filed with respect to the subject matter relied upon in the document if they name another inventor: (1) U.S. patents; (2) U.S. patent application publications; and (3) certain WIPO published applications. These documents are referred to collectively as “U.S. patent documents.” These documents may have different prior art effects under pre-AIA 35 U.S.C. 102(e) than under AIA 35 U.S.C. 102(a)(2). Note that a U.S. patent document may also be prior art under AIA 35 U.S.C. 102(a)(1) if its issue or publication date is before the effective filing date of the claimed invention in question.
If the issue date of the U.S. patent or publication date of the U.S. patent application publication or WIPO published application is not before the effective filing date of the claimed invention, it may be applicable as prior art under AIA 35 U.S.C. 102(a)(2) if it was “effectively filed” before the effective filing date of the claimed invention in question with respect to the subject matter relied upon to reject the claim. MPEP § 2152.01 discusses the “effective filing date” of a claimed invention. AIA 35 U.S.C. 102(d) sets forth the criteria to determine when subject matter described in a U.S. patent document was “effectively filed” for purposes of AIA 35 U.S.C. 102(a)(2).