How can an inventor prove a prior public disclosure for the AIA 35 U.S.C. 102(b)(2)(B) exception?

This page is an FAQ based on guidance from the Manual of Patent Examining Procedure. It is provided as guidance, with links to the ground truth sources. This is information only: it is not legal advice.

To prove a prior public disclosure for the AIA 35 U.S.C. 102(b)(2)(B) exception, inventors can use affidavits or declarations. The MPEP provides guidance on this:

“MPEP § 2155.02 discusses the use of affidavits or declarations to show a prior public disclosure of the subject matter by the inventor or a joint inventor, and MPEP § 2155.03 discusses the use of affidavits or declarations to show a prior public disclosure of the subject matter by another who obtained the subject matter disclosed directly or indirectly from the inventor or a joint inventor.“

Key points to remember:

• Affidavits or declarations can be used to show prior public disclosure by the inventor, joint inventor, or someone who obtained the subject matter from them.
• The affidavit or declaration should provide evidence of the public disclosure and its date.
• The disclosed subject matter must be the same as the subject matter in the intervening U.S. patent document for the exception to apply.
• The mode of disclosure (e.g., publication, public use, sale) doesn’t need to match the intervening U.S. patent document.

It’s important to consult MPEP § 2155.02 and MPEP § 2155.03 for detailed information on preparing these affidavits or declarations.