When does the 35 U.S.C. 102(b)(2)(C) exception not apply?

This page is an FAQ based on guidance from the Manual of Patent Examining Procedure. It is provided as guidance, with links to the ground truth sources. This is information only: it is not legal advice.

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).