How does the In re Ekenstam case affect the availability of secret patents as references?

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Source: FAQ (MPEP-Based) BlueIron Update: 2024-09-29 10 Rules 5 Related FAQs 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. The In re Ekenstam case establishes an important exception to the general rule regarding the availability of foreign patents as references. MPEP 2126.01 mentions this case: “In re Ekenstam, 256 F.2d 321, 118 USPQ 349 (CCPA 1958).” (MPEP 2126.01) This case recognized that when a patent is kept secret even after rights are formally awarded, its effective date as a reference may be delayed. This exception is crucial for understanding how secret or confidential patents are treated in prior art considerations, potentially affecting their use in patent examinations and validity challenges. Related Rules from the Manual of Patent Examining Procedure 10 rules Collapse Summary of Foreign Patent Dates for Pre-AIA 35 U.S.C. 102 MPEP 2126.01 Date of Patent Availability as a Reference MPEP 2126.01 Patent Available as Prior Art on Public Release Date MPEP 2126 Patents Usable as Pre-AIA Prior Art Upon Granting MPEP 2126 Patent Secrecy Not Prior Art MPEP 2126 Patent Secrecy on Award Date Exception MPEP 2126.01 Enforceable Patent Date Generally Reflects Grant Date MPEP 2126.01 Secret Patents Not Considered Public Use MPEP 2126 Document Must Be Publicly Available to Serve as Prior Art MPEP 2126 Required Patent Secrecy Does Not Affect Pre-AIA 102(d) MPEP 2126 Other Related FAQs 5 FAQs Collapse Where can I find a summary of patenting dates for foreign patents? When is a foreign patent considered available as a reference? What is the exception to the general rule for foreign patent reference dates? What is the significance of the In re Monks case for patent reference dates? How does the MPEP address pre-AIA 35 U.S.C. 102 with respect to foreign patent dates?