What is the difference between AIA 35 U.S.C. 102(b)(2)(C) and pre-AIA 35 U.S.C. 103(c)?
While both AIA 35 U.S.C. 102(b)(2)(C) and pre-AIA 35 U.S.C. 103(c) deal with common ownership, there are significant differences between them. According to MPEP 2154.02(c):
“If the provisions of AIA 35 U.S.C. 102(b)(2)(C) are met, a U.S. patent document that might otherwise qualify as prior art under AIA 35 U.S.C. 102(a)(2) is not available as prior art under either AIA 35 U.S.C. 102 or 103. This differs from pre-AIA 35 U.S.C. 103(c) in which prior art can preclude patentability under pre-AIA 35 U.S.C. 102, even if the conditions of pre-AIA 35 U.S.C. 103(c) are met.”
This means that under the AIA, if the common ownership exception applies, the prior art cannot be used for either anticipation or obviousness rejections. In contrast, under pre-AIA law, the prior art could still be used for anticipation rejections even if the common ownership exception applied.
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