What is the difference between overcoming a 102(a)(1) and a 102(a)(2) rejection?

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 methods for overcoming 102(a)(1) and 102(a)(2) rejections differ due to the nature of the prior art involved. According to MPEP 2152.06:

For 102(a)(1) rejections:

• Argue that the reference is not prior art
• Invoke an exception under 102(b)(1)
• Antedate the reference (for pre-AIA applications)

For 102(a)(2) rejections:

• Argue that the reference is not prior art
• Invoke an exception under 102(b)(2)
• Show common ownership or obligation of assignment
• Antedate the reference (for pre-AIA applications)

The key difference is that 102(a)(2) rejections can be overcome by showing common ownership or obligation of assignment, which is not applicable to 102(a)(1) rejections. Additionally, the exceptions under 102(b)(1) and 102(b)(2) have different requirements and timeframes.