Patent Law FAQ
This FAQ answers all your questions about patent law, patent procedure, and the patent examination process.
(B) (1)
Pre-AIA 35 U.S.C. 102(b) is significant because it creates a statutory bar to obtaining a patent. According to the MPEP, If the publication or issue date of the reference is more than 1 year prior to the effective filing date of the claimed invention (MPEP § 2139.01), the reference qualifies as prior art under pre-AIA 35 U.S.C. 102(b).
This means that any public disclosure, such as a publication, patent, public use, or sale that occurred more than one year before the effective filing date of the claimed invention can prevent the issuance of a patent.
It’s important to note that there’s a grace period provision: Publications, patents, public uses and sales, however, will not bar a patent if the 1-year grace period otherwise ends on a Saturday, Sunday, or federal holiday and the application’s U.S. filing date is the next succeeding business day.
To learn more:
MPEP 2100 – Patentability (5)
Pre-AIA 35 U.S.C. 102(b) is significant because it creates a statutory bar to obtaining a patent. According to the MPEP, If the publication or issue date of the reference is more than 1 year prior to the effective filing date of the claimed invention (MPEP § 2139.01), the reference qualifies as prior art under pre-AIA 35 U.S.C. 102(b).
This means that any public disclosure, such as a publication, patent, public use, or sale that occurred more than one year before the effective filing date of the claimed invention can prevent the issuance of a patent.
It’s important to note that there’s a grace period provision: Publications, patents, public uses and sales, however, will not bar a patent if the 1-year grace period otherwise ends on a Saturday, Sunday, or federal holiday and the application’s U.S. filing date is the next succeeding business day.
To learn more:
Yes, in some circumstances, a secret or confidential use of an invention can constitute public use under pre-AIA 35 U.S.C. 102(b). The MPEP explains:
“[S]ecrecy of use alone is not sufficient to show that existing knowledge has not been withdrawn from public use; commercial exploitation is also forbidden.”
This means that even if an invention is used secretly, if it’s being commercially exploited, it may still be considered a public use. However, the mere fact that an invention is used internally by the inventor or their company to develop future products that are never sold is not sufficient by itself to create a public use bar.
It’s important to note that “public” is not necessarily synonymous with “non-secret.” The determination of whether a use is public depends on various factors, including the nature of the activity, public access, confidentiality obligations, and commercial exploitation.
To learn more:
Generally, an inventor’s private use of an invention for their own enjoyment does not constitute public use under pre-AIA 35 U.S.C. 102(b). The MPEP provides guidance on this matter:
“An inventor’s private use of the invention, for his or her own enjoyment is not a public use.”
This principle is illustrated in the case of Moleculon Research Corp. v. CBS, Inc., where the court held that an inventor showing his inventive puzzle to close friends in his dorm room and later discussing it with his company president did not result in a “public use.” The key factor was that the inventor retained control over the invention.
However, it’s important to note that if the private use involves commercial exploitation or if the invention becomes accessible to the public without restrictions, it may still be considered a public use. The determination often depends on the specific circumstances and the level of control the inventor maintains over the invention.
To learn more:
No, public knowledge is not necessarily the same as public use under pre-AIA 35 U.S.C. 102(b). The MPEP clearly states:
“Mere knowledge of the invention by the public does not warrant rejection under pre-AIA 35 U.S.C. 102(b). Pre-AIA 35 U.S.C. 102(b) bars public use or sale, not public knowledge.”
However, it’s important to note that while public knowledge may not constitute public use under 102(b), it could potentially provide grounds for rejection under other sections of the patent law, such as pre-AIA 35 U.S.C. 102(a).
To learn more:
The critical date is a crucial concept in pre-AIA 35 U.S.C. 102(b) rejections. It is defined as one year before the effective U.S. filing date of the patent application. The significance of the critical date lies in its role as a cutoff point for determining whether prior art can be used against a patent application.
According to the MPEP:
The critical date is the date one year prior to the effective filing date of the application. Any printed publication having a date earlier than the critical date is a potential reference under pre-AIA 35 U.S.C. 102(b) against the claimed invention.
Source: MPEP 2133.02(a)
The critical date is important because:
- Any public disclosure, sale, or use of the invention before the critical date can be used as prior art against the application.
- It sets a time limit for inventors to file their patent applications after public disclosure.
- It helps determine the validity of potential prior art references in rejections.
Understanding the critical date is essential for both patent examiners and applicants in assessing the patentability of an invention under pre-AIA 35 U.S.C. 102(b).
To learn more:
MPEP 2133.02(A) – Overcoming A Pre – Aia 35 U.S.C. 102(B) Rejection Based On A Printed Publication Or Patent (1)
The critical date is a crucial concept in pre-AIA 35 U.S.C. 102(b) rejections. It is defined as one year before the effective U.S. filing date of the patent application. The significance of the critical date lies in its role as a cutoff point for determining whether prior art can be used against a patent application.
According to the MPEP:
The critical date is the date one year prior to the effective filing date of the application. Any printed publication having a date earlier than the critical date is a potential reference under pre-AIA 35 U.S.C. 102(b) against the claimed invention.
Source: MPEP 2133.02(a)
The critical date is important because:
- Any public disclosure, sale, or use of the invention before the critical date can be used as prior art against the application.
- It sets a time limit for inventors to file their patent applications after public disclosure.
- It helps determine the validity of potential prior art references in rejections.
Understanding the critical date is essential for both patent examiners and applicants in assessing the patentability of an invention under pre-AIA 35 U.S.C. 102(b).
To learn more:
MPEP 2133.03(A) – "Public Use" (3)
Yes, in some circumstances, a secret or confidential use of an invention can constitute public use under pre-AIA 35 U.S.C. 102(b). The MPEP explains:
“[S]ecrecy of use alone is not sufficient to show that existing knowledge has not been withdrawn from public use; commercial exploitation is also forbidden.”
This means that even if an invention is used secretly, if it’s being commercially exploited, it may still be considered a public use. However, the mere fact that an invention is used internally by the inventor or their company to develop future products that are never sold is not sufficient by itself to create a public use bar.
It’s important to note that “public” is not necessarily synonymous with “non-secret.” The determination of whether a use is public depends on various factors, including the nature of the activity, public access, confidentiality obligations, and commercial exploitation.
To learn more:
Generally, an inventor’s private use of an invention for their own enjoyment does not constitute public use under pre-AIA 35 U.S.C. 102(b). The MPEP provides guidance on this matter:
“An inventor’s private use of the invention, for his or her own enjoyment is not a public use.”
This principle is illustrated in the case of Moleculon Research Corp. v. CBS, Inc., where the court held that an inventor showing his inventive puzzle to close friends in his dorm room and later discussing it with his company president did not result in a “public use.” The key factor was that the inventor retained control over the invention.
However, it’s important to note that if the private use involves commercial exploitation or if the invention becomes accessible to the public without restrictions, it may still be considered a public use. The determination often depends on the specific circumstances and the level of control the inventor maintains over the invention.
To learn more:
No, public knowledge is not necessarily the same as public use under pre-AIA 35 U.S.C. 102(b). The MPEP clearly states:
“Mere knowledge of the invention by the public does not warrant rejection under pre-AIA 35 U.S.C. 102(b). Pre-AIA 35 U.S.C. 102(b) bars public use or sale, not public knowledge.”
However, it’s important to note that while public knowledge may not constitute public use under 102(b), it could potentially provide grounds for rejection under other sections of the patent law, such as pre-AIA 35 U.S.C. 102(a).
To learn more:
MPEP 2139.02 – Determining Whether To Apply Pre – Aia 35 U.S.C. 102(A) (1)
Pre-AIA 35 U.S.C. 102(b) is significant because it creates a statutory bar to obtaining a patent. According to the MPEP, If the publication or issue date of the reference is more than 1 year prior to the effective filing date of the claimed invention (MPEP § 2139.01), the reference qualifies as prior art under pre-AIA 35 U.S.C. 102(b).
This means that any public disclosure, such as a publication, patent, public use, or sale that occurred more than one year before the effective filing date of the claimed invention can prevent the issuance of a patent.
It’s important to note that there’s a grace period provision: Publications, patents, public uses and sales, however, will not bar a patent if the 1-year grace period otherwise ends on a Saturday, Sunday, or federal holiday and the application’s U.S. filing date is the next succeeding business day.
To learn more:
Or (E) (1)
Pre-AIA 35 U.S.C. 102(b) is significant because it creates a statutory bar to obtaining a patent. According to the MPEP, If the publication or issue date of the reference is more than 1 year prior to the effective filing date of the claimed invention (MPEP § 2139.01), the reference qualifies as prior art under pre-AIA 35 U.S.C. 102(b).
This means that any public disclosure, such as a publication, patent, public use, or sale that occurred more than one year before the effective filing date of the claimed invention can prevent the issuance of a patent.
It’s important to note that there’s a grace period provision: Publications, patents, public uses and sales, however, will not bar a patent if the 1-year grace period otherwise ends on a Saturday, Sunday, or federal holiday and the application’s U.S. filing date is the next succeeding business day.
To learn more:
Patent Law (5)
Pre-AIA 35 U.S.C. 102(b) is significant because it creates a statutory bar to obtaining a patent. According to the MPEP, If the publication or issue date of the reference is more than 1 year prior to the effective filing date of the claimed invention (MPEP § 2139.01), the reference qualifies as prior art under pre-AIA 35 U.S.C. 102(b).
This means that any public disclosure, such as a publication, patent, public use, or sale that occurred more than one year before the effective filing date of the claimed invention can prevent the issuance of a patent.
It’s important to note that there’s a grace period provision: Publications, patents, public uses and sales, however, will not bar a patent if the 1-year grace period otherwise ends on a Saturday, Sunday, or federal holiday and the application’s U.S. filing date is the next succeeding business day.
To learn more:
Yes, in some circumstances, a secret or confidential use of an invention can constitute public use under pre-AIA 35 U.S.C. 102(b). The MPEP explains:
“[S]ecrecy of use alone is not sufficient to show that existing knowledge has not been withdrawn from public use; commercial exploitation is also forbidden.”
This means that even if an invention is used secretly, if it’s being commercially exploited, it may still be considered a public use. However, the mere fact that an invention is used internally by the inventor or their company to develop future products that are never sold is not sufficient by itself to create a public use bar.
It’s important to note that “public” is not necessarily synonymous with “non-secret.” The determination of whether a use is public depends on various factors, including the nature of the activity, public access, confidentiality obligations, and commercial exploitation.
To learn more:
Generally, an inventor’s private use of an invention for their own enjoyment does not constitute public use under pre-AIA 35 U.S.C. 102(b). The MPEP provides guidance on this matter:
“An inventor’s private use of the invention, for his or her own enjoyment is not a public use.”
This principle is illustrated in the case of Moleculon Research Corp. v. CBS, Inc., where the court held that an inventor showing his inventive puzzle to close friends in his dorm room and later discussing it with his company president did not result in a “public use.” The key factor was that the inventor retained control over the invention.
However, it’s important to note that if the private use involves commercial exploitation or if the invention becomes accessible to the public without restrictions, it may still be considered a public use. The determination often depends on the specific circumstances and the level of control the inventor maintains over the invention.
To learn more:
No, public knowledge is not necessarily the same as public use under pre-AIA 35 U.S.C. 102(b). The MPEP clearly states:
“Mere knowledge of the invention by the public does not warrant rejection under pre-AIA 35 U.S.C. 102(b). Pre-AIA 35 U.S.C. 102(b) bars public use or sale, not public knowledge.”
However, it’s important to note that while public knowledge may not constitute public use under 102(b), it could potentially provide grounds for rejection under other sections of the patent law, such as pre-AIA 35 U.S.C. 102(a).
To learn more:
The critical date is a crucial concept in pre-AIA 35 U.S.C. 102(b) rejections. It is defined as one year before the effective U.S. filing date of the patent application. The significance of the critical date lies in its role as a cutoff point for determining whether prior art can be used against a patent application.
According to the MPEP:
The critical date is the date one year prior to the effective filing date of the application. Any printed publication having a date earlier than the critical date is a potential reference under pre-AIA 35 U.S.C. 102(b) against the claimed invention.
Source: MPEP 2133.02(a)
The critical date is important because:
- Any public disclosure, sale, or use of the invention before the critical date can be used as prior art against the application.
- It sets a time limit for inventors to file their patent applications after public disclosure.
- It helps determine the validity of potential prior art references in rejections.
Understanding the critical date is essential for both patent examiners and applicants in assessing the patentability of an invention under pre-AIA 35 U.S.C. 102(b).
To learn more:
Patent Procedure (5)
Pre-AIA 35 U.S.C. 102(b) is significant because it creates a statutory bar to obtaining a patent. According to the MPEP, If the publication or issue date of the reference is more than 1 year prior to the effective filing date of the claimed invention (MPEP § 2139.01), the reference qualifies as prior art under pre-AIA 35 U.S.C. 102(b).
This means that any public disclosure, such as a publication, patent, public use, or sale that occurred more than one year before the effective filing date of the claimed invention can prevent the issuance of a patent.
It’s important to note that there’s a grace period provision: Publications, patents, public uses and sales, however, will not bar a patent if the 1-year grace period otherwise ends on a Saturday, Sunday, or federal holiday and the application’s U.S. filing date is the next succeeding business day.
To learn more:
Yes, in some circumstances, a secret or confidential use of an invention can constitute public use under pre-AIA 35 U.S.C. 102(b). The MPEP explains:
“[S]ecrecy of use alone is not sufficient to show that existing knowledge has not been withdrawn from public use; commercial exploitation is also forbidden.”
This means that even if an invention is used secretly, if it’s being commercially exploited, it may still be considered a public use. However, the mere fact that an invention is used internally by the inventor or their company to develop future products that are never sold is not sufficient by itself to create a public use bar.
It’s important to note that “public” is not necessarily synonymous with “non-secret.” The determination of whether a use is public depends on various factors, including the nature of the activity, public access, confidentiality obligations, and commercial exploitation.
To learn more:
Generally, an inventor’s private use of an invention for their own enjoyment does not constitute public use under pre-AIA 35 U.S.C. 102(b). The MPEP provides guidance on this matter:
“An inventor’s private use of the invention, for his or her own enjoyment is not a public use.”
This principle is illustrated in the case of Moleculon Research Corp. v. CBS, Inc., where the court held that an inventor showing his inventive puzzle to close friends in his dorm room and later discussing it with his company president did not result in a “public use.” The key factor was that the inventor retained control over the invention.
However, it’s important to note that if the private use involves commercial exploitation or if the invention becomes accessible to the public without restrictions, it may still be considered a public use. The determination often depends on the specific circumstances and the level of control the inventor maintains over the invention.
To learn more:
No, public knowledge is not necessarily the same as public use under pre-AIA 35 U.S.C. 102(b). The MPEP clearly states:
“Mere knowledge of the invention by the public does not warrant rejection under pre-AIA 35 U.S.C. 102(b). Pre-AIA 35 U.S.C. 102(b) bars public use or sale, not public knowledge.”
However, it’s important to note that while public knowledge may not constitute public use under 102(b), it could potentially provide grounds for rejection under other sections of the patent law, such as pre-AIA 35 U.S.C. 102(a).
To learn more:
The critical date is a crucial concept in pre-AIA 35 U.S.C. 102(b) rejections. It is defined as one year before the effective U.S. filing date of the patent application. The significance of the critical date lies in its role as a cutoff point for determining whether prior art can be used against a patent application.
According to the MPEP:
The critical date is the date one year prior to the effective filing date of the application. Any printed publication having a date earlier than the critical date is a potential reference under pre-AIA 35 U.S.C. 102(b) against the claimed invention.
Source: MPEP 2133.02(a)
The critical date is important because:
- Any public disclosure, sale, or use of the invention before the critical date can be used as prior art against the application.
- It sets a time limit for inventors to file their patent applications after public disclosure.
- It helps determine the validity of potential prior art references in rejections.
Understanding the critical date is essential for both patent examiners and applicants in assessing the patentability of an invention under pre-AIA 35 U.S.C. 102(b).
To learn more: