What is prima facie evidence of “by another” in pre-AIA 35 U.S.C. 102(e) rejections?

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.

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.