What is the difference between prior art under 35 U.S.C. 102(a)(1) and 35 U.S.C. 102(a)(2)?

The distinction between prior art under 35 U.S.C. 102(a)(1) and 35 U.S.C. 102(a)(2) is crucial for understanding the application of the prior art exception under AIA 35 U.S.C. 102(b)(2)(C). According to MPEP 717.02(c):

• Prior art under 35 U.S.C. 102(a)(1) includes disclosures available to the public before the effective filing date of the claimed invention.
• Prior art under 35 U.S.C. 102(a)(2) includes U.S. patents, U.S. patent application publications, or WIPO publications of international applications that designate the United States, which have an effective filing date before the effective filing date of the claimed invention.

The MPEP explicitly states: Examiners are reminded that a disclosure that is prior art under 35 U.S.C. 102(a)(1) is not excepted as prior art even if the reference is excepted under 35 U.S.C. 102(b)(2)(C).

This means that the prior art exception under AIA 35 U.S.C. 102(b)(2)(C) only applies to prior art under 35 U.S.C. 102(a)(2) and not to prior art under 35 U.S.C. 102(a)(1).

To learn more:

• prior art
• 35 U.S.C. 102(a)(1)
• 35 U.S.C. 102(a)(2)
• AIA

To learn more:

• 35 U.S.C. 102(a)(1)
• 35 U.S.C. 102(a)(2)