How does the AIA 35 U.S.C. 102(b)(2)(B) exception differ from the AIA 35 U.S.C. 102(b)(1)(B) exception?

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.

While both exceptions relate to prior public disclosures by inventors, there are key differences:

• AIA 35 U.S.C. 102(b)(1)(B) applies to disclosures made within the grace period (1 year before the effective filing date).
• AIA 35 U.S.C. 102(b)(2)(B) has no grace period limitation and can apply to any U.S. patent document, regardless of its potential prior art date under AIA 35 U.S.C. 102(a)(2).

The MPEP states: “There is no grace period limitation to the applicability of the AIA 35 U.S.C. 102(b)(2)(B) exception.” This means that an inventor’s public disclosure can potentially disqualify a later-filed U.S. patent document as prior art, even if that document was filed years after the inventor’s disclosure.

However, it’s important to note that if the inventor’s public disclosure is not within the grace period, it would still qualify as prior art under AIA 35 U.S.C. 102(a)(1) and could not be excepted under AIA 35 U.S.C. 102(b)(1).