How does the Milburn rule relate to pre-AIA 35 U.S.C. 102(e)?
The Milburn rule, codified in pre-AIA 35 U.S.C. 102(e), allows the use of a U.S. patent as a reference against a later filed application as of the U.S. patent filing date. The MPEP explains this in MPEP 2136.04:
“As stated by the House and Senate reports on the bills enacting section pre-AIA 35 U.S.C. 102(e) as part of the 1952 Patent Act, this subsection of 102 codifies the Milburn rule of Milburn v. Davis-Bournonville, 270 U.S. 390, 1926 C.D. 303, 344 O.G. 817 (1926).”
This rule is significant because it establishes that an earlier filed U.S. application containing the subject matter claimed in a later application indicates that the applicant of the later application was not the first inventor.
To learn more:
Topics:
MPEP 2100 - Patentability,
MPEP 2136.04 - Different Inventive Entity; Meaning Of "By Another",
Patent Law,
Patent Procedure