What is the significance of the effective filing date in invoking the prior art exception?
What is the significance of the effective filing date in invoking the prior art exception?
The effective filing date plays a crucial role in invoking the prior art exception under 35 U.S.C. 102(b)(2)(C). According to MPEP 717.02(a):
Even if the exception under AIA 35 U.S.C. 102(b)(2)(C) does not apply, the subject matter disclosed and the claimed invention may still not be prior art to each other if the subject matter disclosed was obtained directly or indirectly from the inventor or a joint inventor.
This means that the common ownership or obligation of assignment must exist not later than the effective filing date of the claimed invention. The effective filing date serves as the critical point for determining whether the prior art exception can be invoked. It’s important for applicants to ensure that any necessary assignments or agreements are in place by this date to successfully use this exception.
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