What is a statutory bar in the context of MPEP 715.01(d)?
While MPEP 715.01(d) doesn’t explicitly define a statutory bar, it mentions it as an exception to when certain rejections can be overcome. The section states:
“Unless it is a statutory bar, a rejection under pre-AIA 35 U.S.C. 102 or 103 based on an activity showing that the claimed invention was used or known prior to the filing date of the application may be overcome…”
A statutory bar refers to certain events or activities that, if they occur more than one year before the filing date of a patent application, will permanently bar the inventor from obtaining a patent. These are defined in pre-AIA 35 U.S.C. 102(b) and typically include:
- Public use of the invention in the U.S.
- Sale or offer for sale of the invention in the U.S.
- Printed publication describing the invention anywhere in the world
If a statutory bar exists, the applicant cannot overcome the rejection using the methods described in MPEP 715.01(d), such as swearing behind the reference with an affidavit or declaration.
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