How does the MPEP define a “patent” for prior art purposes under 35 U.S.C. 102?

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 MPEP 2126 provides a specific definition for what constitutes a “patent” in the context of prior art rejections under 35 U.S.C. 102. It states:

“The term ‘patent’ as used in 35 U.S.C. 102(a) or pre-AIA 35 U.S.C. 102(a), (b), and (d) includes utility models, inventor’s certificates, and similar patent rights issued by foreign countries.”

This broad definition encompasses not only traditional patents but also other forms of intellectual property protection issued by foreign countries. When considering prior art, examiners must take into account these various types of patent rights, not just standard utility patents.