35 U.S.C. 102
Also called Section 102, AIA 35 U.S.C. 102, 102 rejection, anticipation rejection, novelty requirement (US), first-inventor-to-file, first inventor to file
35 U.S.C. 102 is the section of the US Patent Act that sets the novelty condition for patentability: a person is entitled to a patent unless the claimed invention was already disclosed in the prior art it defines, subject to listed exceptions1. The current version, enacted by the Leahy-Smith America Invents Act (AIA), applies to applications that contain or ever contained a claim with an effective filing date on or after March 16, 20132.
Section 102(a) defines the categories of prior art and section 102(b) sets out exceptions to them1. The USPTO uses these documents and activities to decide whether a claimed invention is novel or nonobvious3.
What the statute says
The statute has four subsections. Two define and limit prior art; two deal with common ownership and the date from which patent documents count1.
| Subsection | What it provides |
|---|---|
| 102(a)(1) | No patent if the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before its effective filing date1. |
| 102(a)(2) | No patent if the claimed invention was described in a US patent, a published US application or an application deemed published under 35 U.S.C. 122(b) (such as a WIPO-published PCT application designating the US) that names another inventor and was effectively filed before the claimed invention's effective filing date1,7. |
| 102(b)(1) | A disclosure made 1 year or less before the effective filing date is not prior art under (a)(1) if it was made by the inventor or a joint inventor (or by another who obtained the subject matter from them), or if the inventor had already publicly disclosed the subject matter1. |
| 102(b)(2) | A disclosure is not prior art under (a)(2) if the subject matter was obtained from the inventor, had first been publicly disclosed by the inventor, or was owned by (or subject to an obligation of assignment to) the same person as the claimed invention not later than its effective filing date1. |
| 102(c) | Parties to a joint research agreement are treated as one owner for (b)(2)(C) if the agreement was in effect on or before the effective filing date, the invention resulted from work within its scope, and the application names the parties1. |
| 102(d) | For (a)(2), a patent or application counts as effectively filed on its actual filing date, or on the filing date of the earliest priority or benefit application that describes the subject matter1. |
What changed with the AIA
The AIA revised section 102 and with it the standard for what prior art is available during examination2. The USPTO's overview lists these differences from pre-AIA law3,7:
- Public use and sale activity need not be in the United States. Under the AIA there is no geographic requirement for a prior public use, sale or other disclosure7.
- The prior art date of a US patent document is measured against the effective filing date of the claimed invention, which takes account of foreign priority and domestic benefit dates3.
- A catch-all category of prior art, "otherwise available to the public", was added3.
- The date of invention is not relevant, so a prior art disclosure cannot be antedated by showing that the inventor invented first7.
The AIA changes to sections 102 and 103 do not apply to any application filed before March 16, 2013; those applications remain governed by pre-AIA 102 and 1035.
The one-year grace period
Section 102(b)(1) effectively provides a one-year grace period after an inventor-originated disclosure, within which an application can be filed without that disclosure, and certain other disclosures, counting as prior art7.
- Find the start dateThe year is measured from the filing date of the earliest US or foreign application to which a proper benefit or priority claim is made, if that earlier application supports the claimed invention as required by 35 U.S.C. 112(a)7.
- Check who made the disclosureThe exception covers disclosures by the inventor or a joint inventor, by another who obtained the subject matter from them, and third-party disclosures made after the inventor had publicly disclosed the same subject matter1.
- Check the last dayIf the period would end on a Saturday, Sunday or federal holiday, it is extended to the next business day7.
Grace periods are not uniform worldwide. WIPO notes that some countries allow one, usually between 6 and 12 months, and that novelty may be interpreted differently under different laws8. See novelty for the European and Chinese rules.
How examiners apply it
A claim rejected under 102 is said to be anticipated, or not novel, over a disclosure that is available as prior art9. The Office bears the initial burden of explaining why a claim does not meet the statutory requirements3.
- A claim is anticipated only if each and every element is found, expressly or inherently, in a single prior art reference9.
- The elements must be arranged as the claim requires, but identical terminology is not required9.
- When a claim covers several alternatives, it is anticipated if any one of them is known in the prior art9.
- In some circumstances, the MPEP permits more than one reference in a 102 rejection9.
If the claimed invention is not identically disclosed, the question becomes whether the differences would have been obvious, which is decided under 35 U.S.C. 1036.
102 vs 103
| Section | Question it answers | Prior art used |
|---|---|---|
| 35 U.S.C. 102 | Was the claimed invention already disclosed before its effective filing date?1 | Each element in a single reference, with limited exceptions9 |
| 35 U.S.C. 103 | Would the differences from the prior art have made the claimed invention as a whole obvious to a person having ordinary skill in the art?6 | The prior art defined in 102, used to judge both novelty and nonobviousness3 |
Seen in the record
The Supreme Court has interpreted the "on sale" category in the AIA version of section 102(a)(1)4.
Helsinn Healthcare S.A. v. Teva Pharmaceuticals USA, Inc.
The Court held that an inventor's sale of an invention to a third party obligated to keep it confidential can qualify as prior art under 102(a), because Congress did not alter the meaning of "on sale" when it enacted the AIA4.
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Does an application filed before March 16, 2013 use the old 102?
Yes. Applications filed before March 16, 2013 are governed by pre-AIA 102 and 103. An application filed on or after that date is also examined under pre-AIA 102 if it has never contained a claim with an effective filing date on or after March 16, 2013 and has never claimed the benefit of an application that did5.
Does my own publication count as prior art against me?
Not if it falls within 102(b)(1). A disclosure made 1 year or less before the effective filing date by the inventor or a joint inventor, or by another who obtained the subject matter from them, is not prior art under 102(a)(1)1. The exception does not reach disclosures made earlier than that1. Europe and China have much narrower exceptions; see novelty.
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