How does pre-AIA 35 U.S.C. 102(d) treat patents with a period of secrecy?

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.

Under pre-AIA 35 U.S.C. 102(d), patents that have a period of secrecy after granting are treated differently than under other subsections of 35 U.S.C. 102. According to MPEP 2126:

“But a period of secrecy after granting the patent has been held to have no effect in connection with pre-AIA 35 U.S.C. 102(d). These patents are usable in rejections under pre-AIA 35 U.S.C. 102(d) as of the date patent rights are granted.”

This principle was established in the case of In re Kathawala, where the court held that the critical date for pre-AIA 35 U.S.C. 102(d) is the date the patent rights are granted, regardless of any subsequent period of secrecy. This differs from the treatment under 35 U.S.C. 102(a) or pre-AIA 35 U.S.C. 102(a) or (b), where public accessibility is crucial.