What is the difference between using a reference under MPEP 2124 and as prior art?
What is the difference between using a reference under MPEP 2124 and as prior art?
The key difference lies in how the reference is used and what it can prove in the patent examination process:
- Prior Art References: Used to show anticipation or obviousness of the claimed invention. They must predate the filing date or have an earlier effective filing date.
- References under MPEP 2124: Used to show the state of the art or level of ordinary skill, even if they postdate the claimed invention.
MPEP 2124 states: “References which do not qualify as prior art because they postdate the claimed invention… cannot be relied upon to show anticipation or obviousness under 35 U.S.C. 102 and 103.” However, these references can still provide valuable context about the technological landscape at the time of the invention.
To learn more:
Topics:
MPEP 2100 - Patentability,
MPEP 2124 - Exception To The Rule That The Reference Must Be Prior Art,
Patent Law,
Patent Procedure