What are the requirements for invoking the exception under AIA 35 U.S.C. 102(b)(1)(B)?

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.

To invoke the exception under AIA 35 U.S.C. 102(b)(1)(B), certain requirements must be met. MPEP 2155.02 outlines these requirements:

“In order for the exception under AIA 35 U.S.C. 102(b)(1)(B) to apply, the subject matter of the intervening disclosure must be the same as the subject matter of the inventor’s previous public disclosure.”

The key requirements include:

• The inventor or joint inventor must have made a public disclosure before the intervening disclosure
• The subject matter in both disclosures must be the same
• The inventor’s disclosure must have occurred within the grace period (one year before the effective filing date)
• The applicant must provide evidence of the earlier disclosure

It’s important to note that the exception does not apply if the intervening disclosure contains additional subject matter not included in the inventor’s previous public disclosure.