What is the difference between 35 U.S.C. 102 and 35 U.S.C. 103 in relation to secondary considerations?

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Source: FAQ (MPEP-Based) BlueIron Update: 2024-09-29 10 Rules 5 Related FAQs 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. The key difference between 35 U.S.C. 102 and 35 U.S.C. 103 in relation to secondary considerations lies in their applicability: 35 U.S.C. 102 (Novelty): Secondary considerations are not relevant and cannot overcome rejections based on this section. 35 U.S.C. 103 (Non-obviousness): Secondary considerations can be used to support non-obviousness arguments. MPEP 2131.04 states: “Evidence of secondary considerations, such as unexpected results or commercial success, is irrelevant to 35 U.S.C. 102 rejections and thus cannot overcome a rejection so based.” This means that while secondary considerations like commercial success or unexpected results can be powerful arguments against obviousness rejections under 35 U.S.C. 103, they have no bearing on novelty determinations under 35 U.S.C. 102. Related Rules from the Manual of Patent Examining Procedure 10 rules Collapse Unexpected Results Irrelevant to 102 Rejections MPEP 2131.04 Prohibited Invention Must Not Be Anticipated by Prior Art MPEP 2131 Permitted Claim Must Be Anticipated Broadly MPEP 2131 Required Claim Must Be Anticipated Over Prior Art MPEP 2131 Claim Must Be Fully Anticipated By Single Reference MPEP 2131 Claim Must Be Fully Disclosed In One Reference MPEP 2131 Claim Covers Multiple Structures Anticipated If Any Known MPEP 2131 Claim Must Be Fully Described MPEP 2131 Required Claim Must Be Anticipated By Single Prior Art Reference MPEP 2131 Elements Must Match Claim Order MPEP 2131 Required Other Related FAQs 5 FAQs Collapse How does commercial success factor into patent examinations? What is the significance of In re Wiggins in patent law? Can secondary considerations overcome a 35 U.S.C. 102 rejection? What are secondary consideration...