Can IP lawyers/law students help me with 35 U.S.C. § 102(e)?

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thesteelers
Posts: 218
Joined: Sun May 01, 2011 6:06 am

Can IP lawyers/law students help me with 35 U.S.C. § 102(e)?

Postby thesteelers » Mon Aug 12, 2013 8:26 pm

I think my brain has screeched to a halt since last week. Also, I haven't taken an IP course and am regretting it. I'm working for a patent litigation firm and the matter I'm supposed to writing a brief about concerns 102(e). I read the provision 3 times and went cross-eyed. Finally I understood it. Then I read that the courts held that an application becomes prior art on its priority date, e.g. at applying/filing (I think applying and filing are the same thing?) But the statutory language says the application becomes prior art when it's published, and says nothing about applying/filing/priority dates.

This is the provision btw:

A person shall be entitled to a patent unless (e) the invention was described in — (1) an application for patent, published under section 122(b), by another filed in the United States before the inven­tion by the applicant for patent or (2) a patent granted on an application for patent by another filed in the United States before the invention by the applicant for patent, except that an international application filed under the treaty defined in section 351(a) shall have the effects for the purposes of this subsection of an application filed in the United States only if the inter­national application designated the United States and was published under Article 21(2) of such treaty in the English language;

When does the application become available/prior art?

If you're already familiar with this issue, then I have this for you:

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thesteelers
Posts: 218
Joined: Sun May 01, 2011 6:06 am

Re: Can IP lawyers/law students help me with 35 U.S.C. § 102(e)?

Postby thesteelers » Mon Aug 12, 2013 8:40 pm

ok I think I figured it out. Offer of e-beer still stands though.

truevines
Posts: 198
Joined: Fri Jun 20, 2008 6:16 pm

Re: Can IP lawyers/law students help me with 35 U.S.C. § 102(e)?

Postby truevines » Tue Aug 13, 2013 1:13 pm

thesteelers wrote:A person shall be entitled to a patent unless (e) the invention was described in — (1) an application for patent, published under section 122(b), by another filed in the United States before the inven­tion by the applicant for patent or (2) a patent granted on an application for patent by another filed in the United States before the invention by the applicant for patent, . . . .

When does the application become available/prior art?


The application must have been filed before the invention. The prior art date of such an application is its effective filing date, i.e., its priority date or the earliest filing date.




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