How does the effective filing date affect prior art rejections?
How does the effective filing date affect prior art rejections?
The effective filing date of a claimed invention is crucial in determining what qualifies as prior art for rejections. According to MPEP 2152:
“The effective filing date of a claimed invention is determined on a claim-by-claim basis and not an application-by-application basis. It is possible for one claim in a patent/application to have a different effective filing date than another claim in the same patent/application.”
The effective filing date impacts prior art rejections in the following ways:
- It establishes the cut-off date for what can be considered prior art under 35 U.S.C. 102(a)(1) and 102(a)(2).
- For applications subject to the AIA, prior art includes disclosures available to the public before the effective filing date.
- For pre-AIA applications, the critical date is one year before the actual filing date in the United States for 102(b) rejections.
Examiners must carefully consider the effective filing date when evaluating prior art for potential rejections, as it directly affects what references can be validly cited against the claims.
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