How does new matter affect AIA status determination?

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.

New matter in a patent application does not affect the determination of AIA status. The MPEP 2159.02 states:

“As 35 U.S.C. 132(a) prohibits the introduction of new matter into the disclosure, an application may not contain a claim to a claimed invention that does not have support under 35 U.S.C. 112(a) in the application (that is directed to new matter).“

Key points:

• An application cannot “contain” a claim directed to new matter for AIA status determination.
• Amendments with new matter are typically entered but treated as follows:
  • New drawings with new matter are not entered (MPEP § 608.02)
  • New matter in the written description or claims is required to be canceled
  • Claims directed to new matter are rejected under 35 U.S.C. 112(a)
• An amendment adding a claim with new matter to a pre-AIA application filed after March 16, 2013, but claiming priority to a pre-March 16, 2013 application, would not change the application to AIA status.