When does the 35 U.S.C. 102(b)(2)(C) exception not apply?
The 35 U.S.C. 102(b)(2)(C) exception does not apply in certain situations. According to the MPEP:
The 35 U.S.C. 102(b)(2)(C) exception does not apply to a disclosure that qualifies as prior art under 35 U.S.C. 102(a)(1) (disclosures publicly made before the effective filing date of the claimed invention).
Additionally, this exception:
- Is not effective to remove a disclosure applied as a basis for a double patenting rejection
- Is not effective to remove a disclosure as evidence of enablement or inherency
It’s important to note that if a disclosure qualifies as prior art under both 35 U.S.C. 102(a)(1) and 102(a)(2), the exception can only disqualify it under 102(a)(2).
To learn more: