What is the “create date” in the context of Pre-AIA 35 U.S.C. 103(c)?

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.

What is the “create date” in the context of Pre-AIA 35 U.S.C. 103(c)?

The “create date” is a crucial concept in determining the applicability of Pre-AIA 35 U.S.C. 103(c). According to the MPEP 2146, the “create date” refers to the date that the subject matter in question was created. Specifically, the MPEP states:

“The ‘create date’ of subject matter under pre-AIA 35 U.S.C. 103(c) is the date that the inventor or joint inventors conceived of the subject matter.”

This date is important because it determines whether the subject matter qualifies for the exception under Pre-AIA 35 U.S.C. 103(c). The subject matter must have been owned by or subject to an obligation of assignment to the same entity at the time the claimed invention was made for the exception to apply.