How does joint inventorship affect prior art determination under 35 U.S.C. 102(e)?

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.

Joint inventorship has significant implications for prior art determination under 35 U.S.C. 102(e). The MPEP 2136.04 provides guidance:

“If the application names a subset of joint inventors A and B of a patent naming inventors A, B and C, the patent is ‘by another’ and therefore qualifies as prior art under pre-AIA 35 U.S.C. 102(e).”

This means that even if there’s overlap in inventors, a difference in the full inventive entity can still make a patent qualify as prior art. It’s crucial to consider the complete list of inventors when making this determination.