Tuesday, March 6, 2007

2001 Examination Guidelines for 35 U.S.C. 102(e)(2)

On February 2, 2001, the U.S. Patent and Trademark Office published a paper summarizing their interpretation of 35 U.S.C. 102(e)(2) as amended by the American Inventors Protection Act. This paper can be found here:

Post-AIPA 102(e)no longer recognized the date of fulfillment of 35 U.S.C. Section 371 (c)(1), (2) and (4) requirements for prior art purposes. Post-AIPA 102 also precluded the use of the international filing date as a United States filing date for purposes of determining the earliest effective prior art date of a patent. Patents issued directly from the National Stage of International Applications are not available as prior art as they have no 102(e)(2) date at all.

All applications filed on or after November 29, 2000 (including International Applications that fulfilled the National Stage requirements) and applications filed before November 29, 2000 that were voluntarily published would be examined in view of patents with effective prior art dates per post-AIPA 102(e)(2).

All applications filed before November 29, 2000, and not voluntarily published, would be examined under pre-AIPA 102(e).

RCEs filed on or after November 29, 2000 did not trigger the new treatment, but CPAs did.