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).

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Tags: AIA, Double Patenting, Enablement, Inherency, prior art exception