What types of prior art can bar patentability under pre-AIA 35 U.S.C. 102(b)?
Under pre-AIA 35 U.S.C. 102(b), several types of prior art can bar patentability if they occur more than one year before the patent application’s filing date. The MPEP specifically mentions:
- Publications
- Patents
- Public uses
- Sales
The MPEP states: “It does not matter how the public came into possession of the invention. Public possession could occur by a public use, public sale, a publication, a patent or any combination of these.”
It’s important to note that the prior art doesn’t need to be identical to the claimed invention to bar patentability. As the MPEP explains, “the prior art need not be identical to the claimed invention but will bar patentability if it is an obvious variant thereof.” This principle was established in In re Foster, 343 F.2d 980, 145 USPQ 166 (CCPA 1966).
Inventors and patent applicants should be aware of all potential sources of prior art that could affect the patentability of their inventions.
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