What determines if an application is subject to pre-AIA 35 U.S.C. 102 and 103?
An application is subject to pre-AIA 35 U.S.C. 102 and 103 if it was filed before March 16, 2013. As stated in the MPEP, Any application filed before March 16, 2013, is governed by pre-AIA 35 U.S.C. 102 and 103 (i.e., the application is a pre-AIA first to invent application).
This means that the filing date is the primary factor in determining which version of the law applies to an application.
It’s important to note that certain actions do not change this status: Note that neither the filing of a request for continued examination, nor entry into the national stage under 35 U.S.C. 371, constitutes the filing of a new application.
This clarifies that these procedural steps do not reset the application’s filing date for the purpose of determining which law applies.
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