What does ‘same subject matter’ mean in the context of 35 U.S.C. 102(b)(1)(B) and 102(b)(2)(B) exceptions?
The concept of ‘same subject matter’ is crucial in applying the exceptions under 35 U.S.C. 102(b)(1)(B) and 102(b)(2)(B). According to the MPEP:
“The exceptions of 35 U.S.C. 102(b)(1)(B) or 102(b)(2)(B) are only applicable when the subject matter of the intervening disclosure is the same as the subject matter of the earlier inventor-originated prior public disclosure.”
It’s important to note that ‘same’ does not mean ‘obvious’. The MPEP clarifies:
“Even if an intervening disclosure by a third party is obvious over an inventor-originated prior public disclosure, it would NOT be a disclosure of the same subject matter and the exceptions under 35 U.S.C. 102(b)(1)(B) and 102(b)(2)(B) do not apply.”
To establish that two disclosures are of the same subject matter, the evidence must be sufficient in character and weight.
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