Can non-patent literature be used as prior art in ex parte reexamination requests?
Yes, non-patent literature can be used as prior art in ex parte reexamination requests, provided it qualifies as a “printed publication.” The MPEP 2244 states:
“The prior art that may be submitted under 35 U.S.C. 302 is limited to ‘patents or printed publications.'”
Printed publications can include various forms of non-patent literature such as:
- Scientific journals
- Technical manuals
- Conference proceedings
- Textbooks
- Publicly accessible websites (with a verifiable publication date)
It’s important to note that the printed publication must have been publicly accessible before the effective filing date of the patent under reexamination.
To learn more:
Topics:
MPEP 2200 - Citation Of Prior Art And Ex Parte Reexamination Of Patents,
MPEP 2244 - Prior Art On Which The Determination Is Based In Requests Filed Under 35 U.S.C. 302,
Patent Law,
Patent Procedure