Can the prior art exception under 35 U.S.C. 102(b)(2)(C) be applied retroactively?

Can the prior art exception under 35 U.S.C. 102(b)(2)(C) be applied retroactively?

The application of the prior art exception under 35 U.S.C. 102(b)(2)(C) is not retroactive. According to the MPEP 717.02(a):

“The CREATE Act provisions of the AIA apply only to applications filed on or after September 16, 2012.”

This means that the exception cannot be applied to applications filed before September 16, 2012. For earlier applications, examiners and applicants must refer to pre-AIA rules and regulations regarding joint research agreements and prior art exceptions.

To learn more:

• prior art exception
• retroactive application
• CREATE Act