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 “printed publication” requirement under Pre-AIA 35 U.S.C. 102(a)?
The “printed publication” requirement under Pre-AIA 35 U.S.C. 102(a) refers to the condition that a reference must be sufficiently accessible to the public to be considered prior art. The MPEP states: “A reference is a ‘printed publication’ if it is accessible to the public. A reference is ‘accessible’ when persons interested and ordinarily skilled in…
Read MoreWhat does “known or used by others in this country” mean in pre-AIA 35 U.S.C. 102(a)?
According to the MPEP, “The statutory language ‘known or used by others in this country’ [pre-AIA 35 U.S.C. 102(a)], means knowledge or use which is accessible to the public.” This interpretation was established in the case of Carella v. Starlight Archery. The MPEP further clarifies that for knowledge or use to be considered accessible to…
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 MoreWho are considered “others” in the context of pre-AIA 35 U.S.C. 102(a)?
According to the MPEP, “The term ‘others’ in pre-AIA 35 U.S.C. 102(a) refers to any entity which is different from the inventive entity. The entity need only differ by one person to be ‘by others.’” This interpretation applies to all types of prior art references under pre-AIA 35 U.S.C. 102(a), including publications, public knowledge, and…
Read MoreHow does the “in this country” limitation apply to Pre-AIA 35 U.S.C. 102(a)?
The “in this country” limitation in Pre-AIA 35 U.S.C. 102(a) applies specifically to the “known or used” clause of the statute. The MPEP clarifies: “The knowledge or use relied on must be knowledge or use ‘in this country.’ Prior knowledge or use which is not present in the United States, even if widespread in a…
Read MoreWhy should examiners consider pre-AIA 35 U.S.C. 102(a) even if a reference is prior art under pre-AIA 35 U.S.C. 102(e)?
Examiners should consider pre-AIA 35 U.S.C. 102(a) even if a reference is prior art under pre-AIA 35 U.S.C. 102(e) for two main reasons: Earlier prior art date: The MPEP states, if the reference is a U.S. patent or patent application publication of, or claims benefit of, an international application, the publication of the international application…
Read MoreWhat is the geographical limitation of “in this country” in pre-AIA 35 U.S.C. 102(a)?
The MPEP clearly states that “The knowledge or use relied on in a pre-AIA 35 U.S.C. 102(a) rejection must be knowledge or use ‘in this country.’” This means that prior knowledge or use outside the United States, even if widespread in a foreign country, cannot be used as a basis for rejection under pre-AIA 35…
Read MoreHow does commercial use affect public use under pre-AIA 35 U.S.C. 102(a)?
The MPEP states that “The nonsecret use of a claimed process in the usual course of producing articles for commercial purposes is a public use.” However, it’s important to note that a secret use of a process, even if the resulting product is commercially sold, does not necessarily constitute public use under pre-AIA 35 U.S.C.…
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