What is the significance of the In re Monks case for patent reference dates?
The In re Monks case is significant in establishing the general rule for when a foreign patent becomes available as a reference. MPEP 2126.01 cites this case: “In re Monks, 588 F.2d 308, 200 USPQ 129 (CCPA 1978).” (MPEP 2126.01) This case affirmed the principle that the date a foreign patent becomes available as a…
Read MoreHow does the In re Ekenstam case affect the availability of secret patents as references?
The In re Ekenstam case establishes an important exception to the general rule regarding the availability of foreign patents as references. MPEP 2126.01 mentions this case: “In re Ekenstam, 256 F.2d 321, 118 USPQ 349 (CCPA 1958).” (MPEP 2126.01) This case recognized that when a patent is kept secret even after rights are formally awarded,…
Read MoreCan a foreign priority date be used as the pre-AIA 35 U.S.C. 102(e) reference date?
No, a foreign priority date cannot be used as the pre-AIA 35 U.S.C. 102(e) reference date. The MPEP clearly states: “Foreign applications’ filing dates that are claimed (via 35 U.S.C. 119(a)–(d), (f) or 35 U.S.C. 365(a)) in applications, which have been published as U.S. or WIPO application publications or patented in the U.S., may not…
Read MoreWhen is a foreign patent considered available as a reference?
Generally, a foreign patent is considered available as a reference on the date it becomes enforceable. This is typically the date when the sovereign formally bestows patent rights to the applicant. As stated in the MPEP: “The date the patent is available as a reference is generally the date that the patent becomes enforceable. This…
Read MoreWhat date must be overcome in a 37 CFR 1.131(a) affidavit or declaration?
When filing an affidavit or declaration under 37 CFR 1.131(a), the date that must be overcome is the effective date of the reference being used in the rejection. The MPEP clearly states: The date to be overcome under 37 CFR 1.131(a) is the effective date of the reference (i.e., the date on which the reference…
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