Can a secret patent be used as prior art under 35 U.S.C. 102(a) or pre-AIA 35 U.S.C. 102(a) or (b)?
No, a secret patent cannot be used as prior art under 35 U.S.C. 102(a) or pre-AIA 35 U.S.C. 102(a) or (b). The MPEP 2126 states: “Even if a patent grants an exclusionary right (is enforceable), it is not available as prior art under 35 U.S.C. 102(a) or pre-AIA 35 U.S.C. 102(a) or (b) if it…
Read MoreWhat is the significance of the publication date for a U.S. patent document in prior art rejections?
The publication date of a U.S. patent document is crucial for determining its eligibility as prior art in patent rejections. According to MPEP 2126: “The date that the patent is made available to the public is the date it is available as a 35 U.S.C. 102(a) or pre-AIA 35 U.S.C. 102(a) and (b) reference.” This…
Read MoreWhat constitutes a “patent” for rejection purposes under 35 U.S.C. 102(a) or pre-AIA 35 U.S.C. 102(a) and (b)?
The designation of a document as a “patent” by a foreign country does not automatically qualify it as a patent for rejection purposes under U.S. patent law. As stated in MPEP 2126: “It is the substance of the rights conferred and the way information within the ‘patent’ is controlled that is determinative.” This means that…
Read MoreWhen is a patent considered available to the public for prior art purposes?
A patent is considered available to the public for prior art purposes under 35 U.S.C. 102(a) or pre-AIA 35 U.S.C. 102(a) or (b) when it is made sufficiently accessible. According to MPEP 2126: “The patent is sufficiently available to the public for the purposes of 35 U.S.C. 102(a) or pre-AIA 35 U.S.C. 102(a) or (b)…
Read MoreWhat is the effective prior art date for WIPO publications of international applications?
The effective prior art date for WIPO publications of international applications depends on the specific subsection of 35 U.S.C. 102 being applied. According to MPEP 2127: “A WIPO publication of an international application that designates but does not originate in the U.S. is effective as prior art under 35 U.S.C. 102(e) as of the date…
Read MoreWhat are the main categories of prior art under AIA 35 U.S.C. 102(a)?
Under AIA 35 U.S.C. 102(a), there are two main categories of prior art: AIA 35 U.S.C. 102(a)(1): This includes documents and activities such as issued patents, published applications, non-patent printed publications, public use, sale, or other public availability of the claimed invention. AIA 35 U.S.C. 102(a)(2): This specifically covers U.S. patent documents. The MPEP states:…
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