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717-Prior Art Exceptions under AIA 35 U. S. C. 102 (b) (1) and (2) 35 U S C 102 (b) (2) (A) and (B) provide that a disclosure shall not be prior art to a claimed invention under 35 U S C 102 (a) (2) if: (1) The subject matter disclosed was obtained directly or indirectly from the inventor or a joint inventor; or (2) the subject matter disclosed had, before such subject matter was effectively filed
MPEP 2154. 02: Prior Art Exceptions Under 35 U. S. C. 102 (b) (2) to AIA 35 U. S. C. 102 (a . . . Prior Art Exceptions Under 35 U S C 102 (b) (2) to AIA 35 U S C 102 (a) (2) Ninth Edition of the MPEP, Revision 01 2024, Last Revised in November 2024 MPEP Chapter Index Chapter 2100: Patentability 2154: Provisions Pertaining to Subject Matter in a U S Patent or Application Effectively Filed Before the Effective Filing Date of the Claimed
Prior Art Exceptions under 35 U. S. C. 102 (b) (1) See MPEP § 2153 02 for prior art exceptions based on inventor-originated prior public disclosures This means there are two main types of exceptions: Grace period inventor-originated disclosures Inventor-originated prior public disclosures To learn more: prior art exceptions 35 U S C 102 (b) (1) AIA FITF grace period inventor
PTAB Year in Review – A Survey of AIA 35 U. S. C. § 102 (b) Prior Art Exceptions at . . . The Leahy-Smith America Invents Act (“AIA”) redefined what constitutes prior art by making the U S patent system a “first-to-file” system instead of the pre-AIA “first-to-invent” system Thus, under AIA 35 U S C § 102(a), prior art is determined based on the effective filing date of the claimed invention, rather than the date of invention
Interpreting Section 102: Prior Art, Exceptions, and More. . . Also, if subject matter of the intervening disclosure is simply a more general description of the subject matter previously publicly disclosed by the inventor or a joint inventor, the exception in AIA 35 U S C 102(b)(1)(B) applies to such subject matter of the intervening disclosure
What are the exceptions to prior art under AIA 35 U. S. C. 102(b)? “ For 102 (b) (1), a key exception is the one-year grace period: “ [a] disclosure made 1 year or less before the effective filing date of a claimed invention shall not be prior art to the claimed invention under subsection (a) (1) if— ” (followed by specific conditions)
What is the difference between the exceptions in 35 U. S. C. 102 (b) (1) and 102 (b) (2)? The MPEP states: “ Potential references are not prior art under 35 U S C 102 (a) (2) if one of the three exception provisions of 35 U S C 102 (b) (2) applies ” This highlights the importance of understanding these exceptions in determining what constitutes prior art under the AIA system To learn more: 102 (b) (1) 102 (b) (2