What is the relevance of the inventive entity in pre-AIA 35 U.S.C. 102(e) rejections?
The inventive entity plays a crucial role in applying pre-AIA 35 U.S.C. 102(e) rejections. The MPEP states:
“In order to apply a reference under pre-AIA 35 U.S.C. 102(e), the inventive entity of the application must be different from that of the cited reference.”
Importantly, for applications with joint inventors, the MPEP clarifies:
“Note that, where there are joint inventors, only one inventor needs to be different for the inventive entities to be different; put another way, a rejection under pre-AIA 35 U.S.C. 102(e) is applicable even if there are some inventors in common between the application and the cited reference.”
This means that a pre-AIA 35 U.S.C. 102(e) rejection can be made even if some inventors are shared between the application and the reference, as long as at least one inventor is different.
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