What is the “pre-AIPA” version of 35 U.S.C. 102(e) and when does it apply?
The “pre-AIPA” version of 35 U.S.C. 102(e) refers to the law as it was in force on November 28, 2000, before the changes made by the American Inventors Protection Act (AIPA). This version applies to patents issued from international applications filed before November 29, 2000.
According to the MPEP, Patents issued directly, or indirectly, from international applications filed before November 29, 2000 may only be used as prior art based on the provisions of pre-AIPA 35 U.S.C. 102(e) as in force on November 28, 2000.
For these patents, the pre-AIPA 35 U.S.C. 102(e) date is the earliest of:
- The date of compliance with 35 U.S.C. 371(c)(1), (2) and (4)
- The filing date of a later-filed U.S. continuing application that claimed the benefit of the international application
It’s important to note that publications of international applications filed before November 29, 2000, do not have a pre-AIPA 35 U.S.C. 102(e) date at all, but they may still be prior art under pre-AIA 35 U.S.C. 102(a) or (b) as of their publication date.
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