How does 35 U.S.C. 102(a)(2) apply to patent applications?

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.

35 U.S.C. 102(a)(2) applies to certain patent documents as prior art. The MPEP states:

“U.S. patents, U.S. patent applications published under 35 U.S.C. 122(b), and international patent applications published under the Patent Cooperation Treaty to another are prior art under 35 U.S.C. 102(a)(2) if the effectively filed date of the disclosure of the reference is before the effective filing date of the claimed invention.”

Key points to understand:

• The reference’s effectively filed date must be before the claimed invention’s effective filing date
• The reference can be prior art even if its publication date is after the claimed invention’s effective filing date
• 35 U.S.C. 102(d) determines when subject matter in these documents was “effectively filed”

Exceptions to 102(a)(2) prior art are provided in 35 U.S.C. 102(b)(2), including disclosures of the inventor’s own work and common ownership scenarios.