What is prima facie evidence of “by another” in pre-AIA 35 U.S.C. 102(e) rejections?
A different inventive entity is considered prima facie evidence that a reference is “by another” for pre-AIA 35 U.S.C. 102(e) rejections. The MPEP states in MPEP 2136.04:
“Therefore, a U.S. patent, a U.S. patent application publication or international application publication, by a different inventive entity, whether or not the application shares some inventors in common with the patent, is prima facie evidence that the invention was made ‘by another’ as set forth in pre-AIA 35 U.S.C. 102(e).”
This means that if there is any difference in the inventive entity between the application being examined and the reference, it is presumed to be “by another” unless proven otherwise.
To learn more:
Topics:
MPEP 2100 - Patentability,
MPEP 2136.04 - Different Inventive Entity; Meaning Of "By Another",
Patent Law,
Patent Procedure