How does an examiner evaluate evidence for an AIA 35 U.S.C. 102(b)(2)(C) exception?

How does an examiner evaluate evidence for an AIA 35 U.S.C. 102(b)(2)(C) exception?

When evaluating evidence for an AIA 35 U.S.C. 102(b)(2)(C) exception, an examiner follows specific procedures as outlined in MPEP 717.02(c):

1. The examiner will determine if the rejection is based upon a disclosure made by the inventor, a joint inventor, or another who obtained the subject matter directly or indirectly from the inventor or joint inventor.
2. The examiner will ascertain if the subject matter of the disclosure of the prior art reference is the same as the subject matter of the claimed invention.
3. The examiner will evaluate any evidence provided by the applicant to support the exception.

The MPEP states:

“The applicant may provide a statement under 37 CFR 1.104(c)(4)(ii) to disqualify a disclosure as prior art by establishing that the subject matter disclosed and the claimed invention, not later than the effective filing date of the claimed invention, were owned by the same person or subject to an obligation of assignment to the same person.”

Additionally:

• The examiner must consider any timely statement or evidence from the applicant.
• If the exception is not properly established, the examiner will treat the subject matter as prior art.
• The examiner may request additional evidence if the applicant’s submission is insufficient.

To learn more:

• examiner evaluation
• AIA 35 U.S.C. 102(b)(2)(C)
• prior art exception
• evidence assessment

To learn more:

• AIA 35 U.S.C. 102(b)(2)(C)