MPEP § 2120 — MPEP § 2120
Current through: 2022-07-01

2120-Rejection on Prior Art 
 
 

 
 
 
 
 
 
 
 

 

 
 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 
 
 
 

 
 
 
 
 
 
 
 
 
 
 

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 Manual of Patent Examining Procedure 

 Chapter 2100 

 Section 2120 
 

 
 
 
 
 
 2120 Rejection on Prior Art [R-01.2024]

 
 35 U.S.C. 102 
 Conditions for patentability; novelty. 

 [Editor Note: Applicable to any patent application subject to the first
 inventor to file provisions of the AIA (see 35 U.S.C. 100
 (note) ). See pre-AIA 35 U.S.C. 102 for the law
 applicable to applications and patents not subject to the first inventor to file
 provisions of the AIA.] 

 
 (a) NOVELTY; PRIOR ART.—A person shall be entitled to a patent unless— 
 
 (1) the claimed invention was patented, described
 in a printed publication, or in public use, on sale, or otherwise available
 to the public before the effective filing date of the claimed invention; or
 
 

 (2) the claimed invention was described in a
 patent issued under section 151 , or in an
 application for patent published or deemed published under section
 122(b) , in which the patent or application, as the
 case may be, names another inventor and was effectively filed before the
 effective filing date of the claimed invention.
 

 
 

 (b) EXCEPTIONS.— 
 
 (1) DISCLOSURES MADE 1 YEAR OR LESS BEFORE THE
 EFFECTIVE FILING DATE OF THE CLAIMED INVENTION.—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— 
 
 (A) the disclosure was made by the inventor or
 joint inventor or by another who obtained the subject matter disclosed
 directly or indirectly from the inventor or a joint inventor; or 
 

 (B) the subject matter disclosed had, before
 such disclosure, been publicly disclosed by the inventor or a joint
 inventor or another who obtained the subject matter disclosed directly
 or indirectly from the inventor or a joint inventor.
 

 
 

 (2) DISCLOSURES APPEARING IN APPLICATIONS AND
 PATENTS.—A disclosure shall not be prior art to a claimed invention under
 subsection (a)(2) if—
 
 (A) the subject matter disclosed was
 obtained directly or indirectly from the inventor or a joint inventor;
 
 

 (B) the subject matter disclosed had, before
 such subject matter was effectively filed under subsection
 (a)(2) , been
 publicly disclosed by the inventor or a joint inventor or another who
 obtained the subject matter disclosed directly or indirectly from the
 inventor or a joint inventor; or
 

 (C) the subject matter disclosed and the
 claimed invention, not later than the effective filing date of the
 claimed invention, were owned by the same person or subject to an
 obligation of assignment to the same person.
 

 
 

 
 

 (c) COMMON OWNERSHIP UNDER JOINT RESEARCH
 AGREEMENTS.—Subject matter disclosed and a claimed invention shall be deemed to
 have been owned by the same person or subject to an obligation of assignment to
 the same person in applying the provisions of subsection (b)(2)(C) if— 
 
 (1) the subject matter disclosed was developed and
 the claimed invention was made by, or on behalf of, 1 or more parties to a
 joint research agreement that was in effect on or before the effective
 filing date of the claimed invention; 
 

 (2) the claimed invention was made as a result of
 activities undertaken within the scope of the joint research agreement; and
 
 

 (3) the application for patent for the claimed
 invention discloses or is amended to disclose the names of the parties to
 the joint research agreement. 
 

 
 

 (d) PATENTS AND PUBLISHED APPLICATIONS EFFECTIVE AS
 PRIOR ART.—For purposes of determining whether a patent or application for patent
 is prior art to a claimed invention under subsection (a)(2) , such patent or application shall be considered to
 have been effectively filed, with respect to any subject matter described in the
 patent or application— 
 
 (1) if paragraph (2) does not apply, as of
 the actual filing date of the patent or the application for patent; or 
 

 (2) if the patent or application for patent
 is entitled to claim a right of priority under section
 119 , 365(a) ,
 365(b) , 386(a) , or
 386(b) , or to claim the
 benefit of an earlier filing date under section
 120 , 121 , 365(c) , or 386(c) based upon 1 or
 more prior filed applications for patent, as of the filing date of the
 earliest such application that describes the subject matter.
 

 
 

 
 

 
 35 U.S.C. 102 (pre-AIA) 
 Conditions for patentability; novelty and loss of
 right to patent. 

 [Editor Note: With the exception of subsection (g) in limited circumstances,
 not applicable to any patent application subject to the first inventor to file
 provisions of the AIA (see 35 U.S.C. 100 (note) ). For an
 application or patent subject to the first inventor to file provisions of the AIA,
 see 35
 U.S.C. 102 .] 

 A person shall be entitled to a patent unless —

 
 (a) the invention was known or used by others in this
 country, or patented or described in a printed publication in this or a foreign
 country, before the invention thereof by the applicant for patent, or
 

 (b) the invention was patented or described in a printed
 publication in this or a foreign country or in public use or on sale in this
 country, more than one year prior to the date of the application for patent in the
 United States, or
 

 (c) he has abandoned the invention, or

 (d) the invention was first patented or caused to be patented, or was
 the subject of an inventor’s certificate, by the applicant or his legal
 representatives or assigns in a foreign country prior to the date of the
 application for patent in this country on an application for patent or inventor’s
 certificate filed more than twelve months before the filing of the application in
 the United States, or
 

 (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;
 or
 

 (f) he did not himself invent the subject matter sought to be
 patented, or
 

 (g)(1) during the course of an interference conducted under
 section
 135 or section 291 , another inventor
 involved therein establishes, to the extent permitted in section 104 ,
 that before such person’s invention thereof the invention was made by such other
 inventor and not abandoned, suppressed, or concealed, or (2) before such person’s
 invention thereof, the invention was made in this country by another inventor who
 had not abandoned, suppressed, or concealed it. In determining priority of
 invention under this subsection, there shall be considered not only the respective
 dates of conception and reduction to practice of the invention, but also the
 reasonable diligence of one who was first to conceive and last to reduce to
 practice, from a time prior to conception by the other.
 

 
 

 
 35 U.S.C. 103 
 Conditions for patentability; non-obvious
 subject matter. 

 [Editor Note: Applicable to any patent application subject to the first
 inventor to file provisions of the AIA (see 35 U.S.C. 100
 (note) ). See pre-AIA 35 U.S.C. 102 for the law
 applicable to applications and patents not subject to the first inventor to file
 provisions of the AIA.] 

 A patent for a claimed invention may not be obtained,
 notwithstanding that the claimed invention is not identically disclosed as set forth in
 section
 102 , if the differences between the claimed invention and the
 prior art are such that the claimed invention as a whole would have been obvious before
 the effective filing date of the claimed invention to a person having ordinary skill in
 the art to which the claimed invention pertains. Patentability shall not be negated by
 the manner in which the invention was made.
 

 

 
 35 U.S.C. 103 (pre-AIA) 
 Conditions for patentability; non-obvious subject
 matter. 

 [Editor Note: Not applicable to any patent application subject to
 the first inventor to file provisions of the AIA (see 35 U.S.C. 100
 (note) ). For an application or patent subject to the first
 inventor to file provisions of the AIA, see 35 U.S.C.
 103 .] 

 
 (a) A patent may not be obtained though the invention is not
 identically disclosed or described as set forth in section 102 ,
 if the differences between the subject matter sought to be patented and the prior
 art are such that the subject matter as a whole would have been obvious at the
 time the invention was made to a person having ordinary skill in the art to which
 said subject matter pertains. Patentability shall not be negatived by the manner
 in which the invention was made.
 

 (b) 
 
 (1) Notwithstanding subsection (a), and upon timely election by
 the applicant for patent to proceed under this subsection, a
 biotechnological process using or resulting in a composition of matter that
 is novel under section 102 and
 nonobvious under subsection (a) of this section shall be considered
 nonobvious if-
 
 (A) claims to the process and the composition of matter
 are contained in either the same application for patent or in separate
 applications having the same effective filing date; and
 

 (B) the composition of matter, and the process at the time
 it was invented, were owned by the same person or subject to an
 obligation of assignment to the same person.
 

 
 

 (2) A patent issued on a process under paragraph (1)-
 
 (A) shall also contain the claims to the composition of
 matter used in or made by that process, or
 

 (B) shall, if such composition of matter is claimed in
 another patent, be set to expire on the same date as such other
 patent, notwithstanding section 154 .
 

 
 

 (3) For purposes of paragraph (1), the term “biotechnological
 process” means-
 
 (A) a process of genetically altering or otherwise
 inducing a single- or multi-celled organism to-
 
 (i) express an exogenous nucleotide sequence,

 (ii) inhibit, eliminate, augment, or alter expression
 of an endogenous nucleotide sequence, or
 

 (iii) express a specific physiological characteristic
 not naturally associated with said organism;
 

 
 

 (B) cell fusion procedures yielding a cell line that
 expresses a specific protein, such as a monoclonal antibody; and
 

 (C) a method of using a product produced by a process
 defined by subparagraph (A) or (B), or a combination of subparagraphs
 (A) and (B).
 

 
 

 
 

 (c) 
 
 (1) Subject matter developed by another person, which qualifies
 as prior art only under one or more of subsections (e), (f), and (g) of
 section
 102 , shall not preclude patentability under this
 section where the subject matter and the claimed invention were, at the time
 the claimed invention was made, owned by the same person or subject to an
 obligation of assignment to the same person.
 

 (2) For purposes of this subsection, subject matter developed by
 another person and a claimed invention shall be deemed to have been owned by
 the same person or subject to an obligation of assignment to the same person
 if — 
 
 (A) the claimed invention was made by or on behalf of
 parties to a joint research agreement that was in effect on or before
 the date the claimed invention was made;
 

 (B) the claimed invention was made as a result of
 activities undertaken within the scope of the joint research
 agreement; and 
 

 (C) the application for patent for the claimed invention
 discloses or is amended to disclose the names of the parties to the
 joint research agreement. 
 

 
 

 (3) For purposes of paragraph (2), the term “joint research
 agreement” means a written contract, grant, or cooperative agreement entered
 into by two or more persons or entities for the performance of experimental,
 developmental, or research work in the field of the claimed invention.
 

 
 

 
 
 I. CHOICE OF PRIOR ART; BEST AVAILABLE Prior art rejections should ordinarily be confined strictly to the best
 available art. Exceptions may properly be made, for example, where:
 

 
 (A) the propriety of a 35 U.S.C. 102 or
 103 rejection depends on a particular interpretation of a
 claim; 
 

 (B) a claim is met by a prior art disclosure which does not disclose
 the inventive concept involved; 
 

 (C) for cases examined under the first inventor to file provisions of
 the AIA, the most pertinent disclosure could be shown not to be prior art by
 invoking an exception in a 37 CFR 1.130 affidavit or
 declaration of attribution or prior public disclosure;
 

 (D) for cases examined under pre-AIA law, an
 obviousness rejection is based on prior art that qualifies only under
 pre-AIA 35
 U.S.C. 102(e), (f), or (g) so that the rejection could be
 overcome by establishing that the prior art is disqualified under
 pre-AIA 35
 U.S.C. 103(c) ; or
 

 (E) for cases examined under pre-AIA law, the most
 pertinent disclosure could be antedated by a 37 CFR
 1.131 affidavit or declaration of prior invention.
 

 
 In the interest of compact prosecution, such rejections should be backed
 up by the best other art rejections available. Keep in mind the best backup rejection(s)
 could be based on alternate embodiments from the same “best available” reference(s). For
 example, if an anticipation rejection could be overcome by invoking an exception in a
 37 CFR
 1.130(b) declaration, it would be appropriate to make an
 additional obviousness rejection over another disclosure in the same reference. Merely
 cumulative rejections, i.e., those which would clearly fall if the primary rejection
 were not sustained, should be avoided. 
 

 See also MPEP § 707.05 .
 

 II. RELIANCE UPON ABSTRACTS AND FOREIGN LANGUAGE DOCUMENTS IN SUPPORT OF A
 REJECTION Prior art uncovered in searching the claimed subject matter of a patent
 application often includes English language abstracts of underlying documents, such as
 technical literature or foreign patent documents which may not be in the English
 language. When both the abstract and the underlying document qualify as prior art, the
 underlying document should normally be used to support a rejection. When an abstract is
 used to support a rejection, the evidence relied upon is the facts contained in the
 abstract, not additional facts that may be contained in the underlying full text
 document. Citation of and reliance upon an abstract without citation of and reliance
 upon the underlying scientific document is generally inappropriate where both the
 abstract and the underlying document are prior art. See Ex parte
 Jones , 62 USPQ2d 1206, 1208 (Bd. Pat. App. & Inter. 2001)
 (unpublished). To determine whether both the abstract and the underlying document are
 prior art, a copy of the underlying document must be obtained and analyzed. If the
 document is in a language other than English and the examiner seeks to rely on that
 document, a translation must be obtained so that the record is clear as to the precise
 facts the examiner is relying upon in support of the rejection. The record must also
 be clear as to whether the examiner is relying upon the abstract or the full text
 document to support a rejection. The rationale for this is several-fold. It is not
 uncommon for a full text document to reveal that the document fully anticipates an
 invention that the abstract renders obvious at best. The converse may also be true, that
 the full text document will include teachings away from the invention that will preclude
 an obviousness rejection under 35 U.S.C. 103 , when the abstract
 alone appears to support the rejection. An abstract can have a different publication
 date than the full text document. Because all patentability determinations are fact
 dependent, obtaining and considering full text documents at the earliest practicable
 time in the examination process will yield the fullest available set of facts upon which
 to determine patentability, thereby improving quality and reducing pendency. In limited
 circumstances, it may be appropriate for the examiner to make a rejection in a non-final
 Office action based in whole or in part on the abstract only without relying on the full
 text document. In such circumstances, the full text document and a translation (if not
 in English) may be supplied in the next Office action.
 

 Examiners may rely on a machine translation of a foreign
 language document unless the machine translation is not of sufficient quality to be
 adequate evidence of the contents of the document. See In re Orbital
 Technologies Corporation, 603 Fed. App’x 924, 932 (Fed. Cir. 2015). A
 request by the applicant for the examiner to obtain a human language translation should
 be granted if the applicant provides evidence (e.g., a translation inconsistent with the
 machine translation) showing the machine translation does not accurately represent the
 document’s contents.
 

 An Office action supplying a full text document and/or
 translation may be made final if the conditions described in MPEP § 706.07(a) or
 for a first Office action or RCE, in MPEP § 706.07(b) , have been met.
 

 Some translation resources available to examiners are
 discussed in MPEP §
 901.05(d) .
 

 III. DISTINCTION BETWEEN 35 U.S.C. 102 AND 103 The distinction between rejections based on 35 U.S.C. 102 and
 those based on 35
 U.S.C. 103 should be kept in mind. Under the former, the claim is
 anticipated by the reference. No question of obviousness is present. In other words, for
 anticipation under 35
 U.S.C. 102 , the reference must teach every aspect of the claimed
 invention either explicitly or impliedly. Any feature not directly taught must be
 inherently present. Whereas, in a rejection based on 35 U.S.C. 103 , the reference
 teachings must somehow be modified in order to meet the claims. The modification must be
 one which would have been obvious to one of ordinary skill in the art before the
 effective filing date of the claimed invention for applications or patents subject to
 the first inventor to file provisions of the AIA or at the time the invention was made
 for applications or patents subject to pre-AIA law. See MPEP §§ 2131 -
 2146 and 2150 -
 2159.04 for guidance on patentability determinations under
 35 U.S.C.
 102 and 103 .
 

 
 2120.01 Rejections Under 35 U.S.C. 102(a)(1) and (a)(2)
 and Pre-AIA 35 U.S.C. 102(a), (b), or (e): Printed Publication or Patent [R-01.2024]
 

 Once the examiner conducts a search and finds a printed publication or
 patent which discloses the claimed invention, the examiner should determine whether the
 rejection should be made under 35 U.S.C. 102(a)(1) or (a)(2) or, if
 the application is subject to the former prior art regime, pre-AIA 35 U.S.C. 102(a), (b), or
 (e) . See MPEP § 2159 for guidance. Form
 paragraph 7.03.aia or 7.03.fti should be used in an Office
 action to indicate whether the application is being examined under the first inventor to
 file provisions of the AIA or the pre-AIA prior art provisions, respectively.
 

 ¶ 7.03.aia Application Examined Under AIA First Inventor to File
 Provisions 
 

 The present application, filed on or after March 16, 2013, is being
 examined under the first inventor to file provisions of the AIA.
 

 Examiner Note:
 
 This form paragraph should be used in any application subject to
 the first inventor to file provisions of the AIA.
 
 
 

 ¶ 7.03.fti Application Examined Under First to Invent
 provisions
 

 The present application, filed on or after March 16, 2013, is being
 examined under the pre-AIA first to invent provisions. 
 

 Examiner Note:
 
 This form paragraph should be used in any application filed
 on or after March 16, 2013 that is subject to the pre-AIA prior art provisions.
 
 
 

 In order to determine which paragraph of 35 U.S.C. 102 
 applies, the effective filing date of each claimed invention must be determined and
 compared with the date of the reference. See MPEP §
 2139.01 regarding determination of effective filing date of
 the claimed invention under pre-AIA law and MPEP §
 2152.01 regarding determination of effective filing date of
 the claimed invention under AIA law.
 

 The examiner must also determine the issue or publication
 date of the reference so that a proper comparison between the application and reference
 dates can be made. See MPEP §§ 2124 , 2126 , 2128 -
 2128.02 , and 2152.02 
 - 2154.02(c) for case law relevant to reference date
 determination.
 

 See MPEP § 2152.05 for determining whether
 to apply 35
 U.S.C. 102(a)(1) or (a)(2) . See MPEP §
 2139.02 for determining whether to apply pre-AIA 35 U.S.C. 102(a), (b), or
 (e) . 
 

 In all applications, an applicant may overcome a 35 U.S.C. 102 
 rejection by persuasively arguing that the claims are patentably distinguishable from
 the prior art, or by amending the claims to patentably distinguish over the prior art.
 Additional ways available to overcome a rejection based on 35 U.S.C. 102 
 prior art depend on whether or not any claim in the application being examined is
 subject to the first inventor to file provisions of the AIA. 
 

 See MPEP § 2152.06 for overcoming a
 rejection under 35 U.S.C. 102(a)(1) or (a)(2) . See
 MPEP §§
 2132.01 , 2133.02(a) , and 2136.05 et seq. for overcoming prior art rejections under pre-AIA 35 U.S.C. 102(a), (b), and
 (e) , respectively.
 

 

 
 2120.02 Rejections Under 35 U.S.C. 102(a)(1) or Pre-AIA
 35 U.S.C. 102(a) or (b): Knowledge by Others, or Public Use, or On Sale [R-07.2022]
 

 An applicant may make an admission, or submit evidence of sale of the
 invention or knowledge of the invention by others, or the examiner may have personal
 knowledge that the invention was sold by applicant or known by others. See
 MPEP §§
 2152.02(c) - 2152.02(e) for a discussion of when public use of a claimed
 invention, placing a claimed invention on sale, or otherwise making a claimed invention
 available to the public might preclude patentability under 35 U.S.C.
 102(a)(1) . See MPEP §§ 2132 and 2133.03 et seq. for a discussion of when public knowledge, public use, or
 sale of a claimed invention might preclude patentability under pre-AIA 35 U.S.C. 102(a) or
 (b) . If the activity is by an entity other than the inventor or
 assignee, such as sale by another, manufacture by another or disclosure of the invention
 by applicant or the inventor to another then both pre-AIA 35 U.S.C. 102(a) and (b) may
 be applicable. If the evidence only points to knowledge within the year prior to the
 effective filing date then pre-AIA 35 U.S.C. 102(a) applies.
 However, no rejection under pre-AIA 35 U.S.C. 102(a) should be
 made if there is evidence that the inventor made the invention and only disclosed it to
 others within the year prior to the effective filing date. 
 

 Note that as an aid to resolving public use or on sale issues, as well
 as to other related matters of public availability or public knowledge, an applicant may
 be required to answer specific questions posed by the examiner and to explain or
 supplement any evidence of record. See 35 U.S.C. 132 and 37 CFR
 1.104(a)(2) . Information sought should be restricted to that which is
 reasonably necessary for the examiner to render a decision on patentability. The
 examiner may consider making a requirement for information under 37 CFR 1.105 
 where the evidence of record indicates reasonable necessity. See MPEP § 704.10 et seq. 

 A 2-month time period should be set by the examiner for any reply to the
 requirement, unless the requirement is part of an Office action having a shortened
 statutory period, in which case the period for reply to the Office action will also
 apply to the requirement. If applicant fails to reply in a timely fashion to a
 requirement for information, the application will be regarded as abandoned.
 35 U.S.C.
 133 . 
 

 If there is not enough information on which to base a public use or on
 sale rejection, the examiner should make a requirement for more information. Form
 paragraph 7.104.aia or 7.104.fti can be used.
 

 ¶ 7.104.aia Requirement for Information, Public Use or Sale or Other Public
 Availability 
 

 An issue of public use, on sale activity, or other public
 availability has been raised in this application. In order for the examiner to properly
 consider patentability of the claimed invention under 35 U.S.C.
 102(a)(1) , additional information regarding this issue is required as
 follows: [1] 

 Applicant is reminded that failure to fully reply to this
 requirement for information will result in a holding of abandonment.
 

 Examiner Note:
 
 1. This form paragraph must be preceded by form paragraph
 7.105 , and should be followed by form paragraphs
 7.122 –
 7.126 as
 appropriate.
 

 2. This form paragraph should only be used in an application filed
 on or after March 16, 2013, where the claims are being examined under 35 U.S.C.
 102 / 103 as amended by the Leahy-Smith
 America Invents Act. This form paragraph must be preceded by form paragraph
 7.03.aia . 
 

 3. Information sought should be restricted to that
 which is reasonably necessary for the examiner to render a decision on patentability.
 See MPEP §
 2133.03 .
 

 4. A two month time period should be set by the examiner
 for reply to the requirement unless it is part of an Office action having a shortened
 statutory period (SSP), in which case the period for reply will apply also to the
 requirement.
 

 5. If sufficient evidence already exists to establish a
 prima facie case of public use, sale, or other public availability
 use form paragraph 7.16.aia
 to make a rejection under 35 U.S.C.
 102(a)(1) . See MPEP § 2133.03 .
 
 
 

 ¶ 7.104.fti Requirement for Information, Public Use or Sale

 An issue of public use or on sale activity has been raised
 in this application. In order for the examiner to properly consider patentability of the
 claimed invention under pre-AIA 35 U.S.C. 102(b) , additional
 information regarding this issue is required as follows: [1] 

 Applicant is reminded that failure to fully reply to this
 requirement for information will result in a holding of abandonment.
 

 Examiner Note:
 
 1. This form paragraph must be preceded by form
 paragraph 7.105 , and should be followed by form paragraphs
 7.122 
 – 7.126 as
 appropriate.
 

 2. Information sought should be restricted to that which
 is reasonably necessary for the examiner to render a decision on patentability. See
 MPEP §
 2133.03 .
 

 3. A two month time period should be set by the examiner for reply
 to the requirement unless it is part of an Office action having an SSP, in which case
 the SSP will apply also to the requirement.
 

 4. If sufficient evidence already exists to establish a
 prima facie case of public use or on sale, use form paragraph
 7.16.fti 
 to make a rejection under pre-AIA 35 U.S.C. 102(b) . See
 MPEP §
 2133.03 .
 
 
 

 

 

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 2101-2102-[Reserved] 

 2103-Patent Examination Process 

 2104-Requirements of 35 U.S.C. 101 
 2104.01-Barred by Atomic Energy Act 

 
 

 2105-Patent Eligible Subject Matter — Living Subject Matter 

 2106-Patent Subject Matter Eligibility 
 2106.01-[Reserved] 

 2106.02-[Reserved] 

 2106.03-Eligibility Step 1: The Four Categories of Statutory Subject Matter 

 2106.04-Eligibility Step 2A: Whether a Claim is Directed to a Judicial Exception 
 2106.04(a)-Abstract Ideas 
 2106.04(a)(1)-Examples of Claims That Do Not Recite Abstract Ideas 

 2106.04(a)(2)-Abstract Idea Groupings 

 2106.04(a)(3)-Tentative Abstract Ideas 

 
 

 2106.04(b)-Laws of Nature, Natural Phenomena & Products of Nature 

 2106.04(c)-The Markedly Different Characteristics Analysis 

 2106.04(d)-Integration of a Judicial Exception Into A Practical Application 
 2106.04(d)(1)-Evaluating Improvements in the Functioning of a Computer, or an Improvement to Any Other Technology or Technical Field in
 Step 2A Prong Two 

 2106.04(d)(2)-Particular Treatment and Prophylaxis in Step 2A Prong Two 

 
 

 
 

 2106.05-Eligibility Step 2B: Whether a Claim Amounts to Significantly More 
 2106.05(a)-Improvements to the Functioning of a Computer or To Any Other Technology or Technical Field 

 2106.05(b)-Particular Machine 

 2106.05(c)-Particular Transformation 

 2106.05(d)-Well-Understood, Routine, Conventional Activity 

 2106.05(e)-Other Meaningful Limitations 

 2106.05(f)-Mere Instructions To Apply An Exception 

 2106.05(g)-Insignificant Extra-Solution Activity 

 2106.05(h)-Field of Use and Technological Environment 

 
 

 2106.06-Streamlined Analysis 
 2106.06(a)-Eligibility is Self Evident 

 2106.06(b)-Clear Improvement to a Technology or to Computer Functionality 

 
 

 2106.07-Formulating and Supporting Rejections For Lack Of Subject Matter Eligibility 
 2106.07(a)-Formulating a Rejection For Lack of Subject Matter Eligibility 
 2106.07(a)(1)-Form Paragraphs for use in Lack of Subject Matter Eligibility Rejections 

 
 

 2106.07(b)-Evaluating Applicant’s Response 

 2106.07(c)-Clarifying the Record 

 
 

 
 

 2107-Guidelines for Examination of Applications for Compliance with the Utility Requirement 
 2107.01-General Principles Governing Utility Rejections 

 2107.02-Procedural Considerations Related to Rejections for Lack of Utility 

 2107.03-Special Considerations for Asserted Therapeutic or Pharmacological Utilities 

 
 

 2108-[Reserved] 

 2109-Inventorship 

 2109.01-Joint Inventorship 

 2110-[Reserved] 

 2111-Claim Interpretation; Broadest Reasonable Interpretation 
 2111.01-Plain Meaning 

 2111.02-Effect of Preamble 

 2111.03-Transitional Phrases 

 2111.04-“Adapted to,” “Adapted for,” “Wherein,” “Whereby,” and Contingent Clauses 

 2111.05-Functional and Nonfunctional Descriptive Material 

 
 

 2112-Requirements of Rejection Based on Inherency; Burden of Proof 
 2112.01-Composition, Product, and Apparatus Claims 

 2112.02-Process Claims 

 
 

 2113-Product-by-Process Claims 

 2114-Apparatus and Article Claims — Functional Language 

 2115-Material or Article Worked Upon by Apparatus 

 2116-Novel, Nonobvious Starting Material or End Product 
 2116.01-Novel, Nonobvious Starting Material or End Product 

 
 

 2117-Markush Claims 

 2118-2119-[Reserved] 

 2120-Rejection on Prior Art 
 2120.01-Rejections Under 35 U.S.C. 102(a)(1) and (a)(2) and Pre-AIA 35 U.S.C. 102(a), (b), or (e): Printed Publication or Patent 

 2120.02-Rejections Under 35 U.S.C. 102(a)(1) or Pre-AIA 35 U.S.C. 102(a) or (b): Knowledge by Others, or Public Use, or On Sale 

 
 

 2121-Prior Art; General Level of Operability Required to Make a Prima Facie Case 
 2121.01-Use of Prior Art in Rejections Where Operability is in Question 

 2121.02-Compounds and Compositions — What Constitutes Enabling Prior Art 

 2121.03-Plant Genetics — What Constitutes Enabling Prior Art 

 2121.04-Apparatus and Articles — What Constitutes Enabling Prior Art 

 
 

 2122-Discussion of Utility in the Prior Art 

 2123-Rejection Over Prior Art’s Broad Disclosure Instead of Preferred Embodiments 

 2124-Exception to the Rule That the Reference Must be Prior Art 
 2124.01-Tax Strategies Deemed Within the Prior Art 

 
 

 2125-Drawings as Prior Art 

 2126-Availability of a Document as a “Patent” for Purposes of Rejection Under 35 U.S.C. 102(a) or Pre-AIA 35 U.S.C. 102(a), (b),
 and (d) 
 2126.01-Date of Availability of a Patent as a Reference 

 2126.02-Scope of Reference’s Disclosure Which Can Be Used to Reject Claims When the Reference Is a “Patent” but Not a “Publication” 

 
 

 2127-Domestic and Foreign Patent Applications as Prior Art 

 2128-“Printed Publications” as Prior Art 
 2128.01-Level of Public Accessibility Required 

 2128.02-Date Publication Is Available as a Reference 

 
 

 2129-Admissions as Prior Art 

 2130-[Reserved] 

 2131-Anticipation — Application of 35 U.S.C. 102 
 2131.01-Multiple Reference 35 U.S.C. 102 Rejections 

 2131.02-Genus-Species Situations 

 2131.03-Anticipation of Ranges 

 2131.04-Secondary Considerations 

 2131.05-Nonanalogous or Disparaging Prior Art 

 
 

 2132-Pre-AIA 35 U.S.C. 102(a) 
 2132.01-Overcoming a Pre-AIA 35 U.S.C. 102(a) Rejection based on a Printed Publication or Patent 

 
 

 2133-Pre-AIA 35 U.S.C. 102(b) 
 2133.01-Rejections of Continuation-In-Part (CIP) Applications 

 2133.02-Rejections Based on Publications and Patents 
 2133.02(a)-Overcoming a Pre-AIA 35 U.S.C. 102(b) Rejection Based on a Printed Publication or Patent 

 
 

 2133.03-Rejections Based on “Public Use” or “On Sale” 
 2133.03(a)-“Public Use” 

 2133.03(b)-“On Sale” 

 2133.03(c)-The “Invention” 

 2133.03(d)-“In This Country” 

 2133.03(e)-Permitted Activity; Experimental Use 
 2133.03(e)(1)-Commercial Exploitation 

 2133.03(e)(2)-Intent 

 2133.03(e)(3)-“Completeness” of the Invention 

 2133.03(e)(4)-Factors Indicative of an Experimental Purpose 

 2133.03(e)(5)-Experimentation and Degree of Supervision and Control 

 2133.03(e)(6)-Permitted Experimental Activity and Testing 

 2133.03(e)(7)-Activity of an Independent Third Party Inventor 

 
 

 
 

 
 

 2134-Pre-AIA 35 U.S.C. 102(c) 

 2135-Pre-AIA 35 U.S.C. 102(d) 
 2135.01-The Four Requirements of Pre-AIA 35 U.S.C. 102(d) 

 
 

 2136-Pre-AIA 35 U.S.C. 102(e) 
 2136.01-Status of Unpublished or Published as Redacted U.S. Application as a Reference Under Pre-AIA 35 U.S.C. 102(e) 

 2136.02-Content of the Prior Art Available Against the Claims 

 2136.03-Critical Reference Date 

 2136.04-Different Inventive Entity; Meaning of “By Another” 

 2136.05-Overcoming a Rejection Under Pre-AIA 35 U.S.C. 102(e) 
 2136.05(a)-Antedating a Pre-AIA 35 U.S.C. 102(e) Reference 

 2136.05(b)-Showing The Reference Is Describing An Inventor's Or At Least One Joint Inventor's Own Work 

 
 

 
 

 2137-Pre-AIA 35 U.S.C. 102(f) 
 2137.01-[Reserved] 

 2137.02-[Reserved] 

 
 

 2138-Pre-AIA 35 U.S.C. 102(g) 
 2138.01-Interference Practice 

 2138.02-“The Invention Was Made in This Country” 

 2138.03-“By Another Who Has Not Abandoned, Suppressed, or Concealed It” 

 2138.04-“Conception” 

 2138.05-“Reduction to Practice” 

 2138.06-“Reasonable Diligence” 

 
 

 2139-Rejections Under Pre-AIA 35 U.S.C. 102 
 2139.01-Effective Filing Date of a Claimed Invention Under Pre-AIA 35 U.S.C. 102 

 2139.02-Determining Whether To Apply Pre-AIA 35 U.S.C. 102(a), (b), or (e) 

 2139.03-Form Paragraphs for Use in Rejections Under Pre-AIA 35 U.S.C. 102 

 
 

 2140-[Reserved] 

 2141-Examination Guidelines for Determining Obviousness Under 35 U.S.C. 103 
 2141.01-Scope and Content of the Prior Art 
 2141.01(a)-Analogous and Nonanalogous Art 

 
 

 2141.02-Differences Between Prior Art and Claimed Invention 

 2141.03-Level of Ordinary Skill in the Art 

 
 

 2142-Legal Concept of Prima Facie Obviousness 

 2143-Examples of Basic Requirements of a Prima Facie Case of Obviousness 
 2143.01-Suggestion or Motivation To Modify the References 

 2143.02-Reasonable Expectation of Success Is Required 

 2143.03-All Claim Limitations Must Be Considered 

 
 

 2144-Supporting a Rejection Under 35 U.S.C. 103 
 2144.01-Implicit Disclosure 

 2144.02-Reliance on Scientific Theory 

 2144.03-Reliance on Common Knowledge in the Art or “Well Known” Prior Art 

 2144.04-Legal Precedent as Source of Supporting Rationale 

 2144.05-Obviousness of Similar and Overlapping Ranges, Amounts, and Proportions 

 2144.06-Art Recognized Equivalence for the Same Purpose 

 2144.07-Art Recognized Suitability for an Intended Purpose 

 2144.08-Obviousness of Species When Prior Art Teaches Genus 

 2144.09-Close Structural Similarity Between Chemical Compounds (Homologs, Analogues, Isomers) 

 
 

 2145-Consideration of Applicant’s Rebuttal Arguments and Evidence 

 2146-Pre-AIA 35 U.S.C. 103(c) 
 2146.01-Prior Art Disqualification Under Pre-AIA 35 U.S.C. 103(c) 

 2146.02-Establishing Common Ownership or Joint Research Agreement Under Pre-AIA 35 U.S.C. 103(c) 

 2146.03-Examination Procedure With Respect to Pre-AIA 35 U.S.C. 103(c) 
 2146.03(a)-Provisional Rejection (Obviousness) Under 35 U.S.C. 103(a) Using Provisional Prior Art Under Pre-AIA 35 U.S.C. 102(e) 

 
 

 
 

 2147-Biotechnology Process Applications; Pre-AIA 35 U.S.C. 103(b) 

 2148-Form Paragraphs for Use in Rejections Under Pre-AIA 35 U.S.C. 103 

 2149-[Reserved] 

 2150-Examination Guidelines for 35 U.S.C. 102 and 103 as Amended by the First Inventor To File Provisions of the Leahy-Smith America
 Invents Act 

 2151-Overview of the Changes to 35 U.S.C. 102 and 103 in the AIA 

 2152-Detailed Discussion of AIA 35 U.S.C. 102(a) and (b) 
 2152.01-Effective Filing Date of the Claimed Invention 

 2152.02-Prior Art Under AIA 35 U.S.C. 102(a)(1) (Patented, Described in a Printed Publication, or in Public Use, on Sale, or Otherwise
 Available to the Public) 
 2152.02(a)-Patented 

 2152.02(b)-Described in a Printed Publication 

 2152.02(c)-In Public Use 

 2152.02(d)-On Sale 

 2152.02(e)-Otherwise Available to the Public 

 2152.02(f)-No Requirement of “By Others” 

 
 

 2152.03-Admissions 

 2152.04-The Meaning of “Disclosure” 

 2152.05-Determining Whether To Apply 35 U.S.C. 102(a)(1) or 102(a)(2) 

 2152.06-Overcoming a 35 U.S.C. 102(a)(1) or 102(a)(2) Rejection 

 2152.07-Form Paragraphs for Use in Rejections Under AIA 35 U.S.C. 102 

 
 

 2153-Prior Art Exceptions Under 35 U.S.C. 102(b)(1) to AIA 35 U.S.C. 102(a)(1) 
 2153.01-Prior Art Exception Under AIA 35 U.S.C. 102(b)(1)(A) To AIA 35 U.S.C. 102(a)(1) (Grace Period Inventor-Originated Disclosure
 Exception) 
 2153.01(a)-Grace Period Inventor-Originated Disclosure Exception 

 2153.01(b)-[Reserved] 

 
 

 2153.02-Prior Art Exception Under AIA 35 U.S.C. 102(b)(1)(B) to AIA 35 U.S.C. 102(a)(1) (Inventor-Originated Prior Public Disclosure
 Exception) 

 
 

 2154-Provisions Pertaining to Subject Matter in a U.S. Patent or Application Effectively Filed Before the Effective Filing Date
 of the Claimed Invention 
 2154.01-Prior Art Under AIA 35 U.S.C. 102(a)(2) “U.S. Patent Documents” 
 2154.01(a)-WIPO Published Applications 

 2154.01(b)-Determining When Subject Matter Was Effectively Filed Under AIA 35 U.S.C. 102(d) 

 2154.01(c)-Requirement Of “Names Another Inventor” 

 2154.01(d)-Provisional Rejections Under 35 U.S.C. 102(a)(2); Reference Is a Copending U.S. Patent Application 

 
 

 2154.02-Prior Art Exceptions Under 35 U.S.C. 102(b)(2) to AIA 35 U.S.C. 102(a)(2) 
 2154.02(a)-Prior Art Exception Under AIA 35 U.S.C. 102(b)(2)(A) to AIA 35 U.S.C. 102(a)(2) (Inventor-Originated Disclosure Exception) 

 2154.02(b)-Prior Art Exception Under AIA 35 U.S.C. 102(b)(2)(B) to AIA 35 U.S.C. 102(a)(2) (Inventor-Originated Prior Public Disclosure
 Exception) 

 2154.02(c)-Prior Art Exception Under AIA 35 U.S.C. 102(b)(2)(C) to AIA 35 U.S.C. 102(a)(2) (Common Ownership or Obligation of Assignment) 

 
 

 
 

 2155-Use of Affidavits or Declarations Under 37 CFR 1.130 To Overcome Prior Art Rejections 
 2155.01-Showing That the Disclosure Was Made by the Inventor or a Joint Inventor 

 2155.02-Showing That the Subject Matter Disclosed Had Been Previously Publicly Disclosed by the Inventor or a Joint Inventor 

 2155.03-Showing That the Disclosure was Made, or That Subject Matter had Been Previously Publicly Disclosed, by Another Who Obtained
 the Subject Matter Disclosed Directly or Indirectly From the Inventor or a Joint Inventor 

 2155.04-Enablement 

 2155.05-Who May File an Affidavit or Declaration Under 37 CFR 1.130 

 2155.06-Situations in Which an Affidavit or Declaration Is Not Available 

 
 

 2156-Joint Research Agreements 

 2157-Improper Naming of Inventors 

 2158-AIA 35 U.S.C. 103 
 2158.01-Form Paragraphs for Use in Rejections Under AIA 35 U.S.C. 103 

 
 

 2159-Applicability Date Provisions and Determining Whether an Application Is Subject to the First Inventor To File Provisions of
 the AIA 
 2159.01-Applications Filed Before March 16, 2013 

 2159.02-Applications Filed on or After March 16, 2013 

 2159.03-Applications Subject to the AIA but Also Containing a Claimed Invention Having an Effective Filing Date Before March 16, 2013 

 2159.04-Applicant Statement in Transition Applications Containing a Claimed Invention Having an Effective Filing Date on or After
 March 16, 2013 

 
 

 2160-[Reserved] 

 2161-Three Separate Requirements for Specification Under 35 U.S.C. 112(a) or Pre-AIA 35 U.S.C. 112, First Paragraph 
 2161.01-Computer Programming, Computer Implemented Inventions, and 35 U.S.C. 112(a) or Pre-AIA 35 U.S.C. 112, First Paragraph 

 
 

 2162-Policy Underlying 35 U.S.C. 112(a) or Pre-AIA 35 U.S.C. 112, First Paragraph 

 2163-Guidelines for the Examination of Patent Applications Under the 35 U.S.C. 112(a) or Pre-AIA 35 U.S.C. 112, first paragraph,
 “Written Description” Requirement 
 2163.01-Support for the Claimed Subject Matter in Disclosure 

 2163.02-Standard for Determining Compliance With the Written Description Requirement 

 2163.03-Typical Circumstances Where Adequate Written Description Issue Arises 

 2163.04-Burden on the Examiner with Regard to the Written Description Requirement 

 2163.05-Changes to the Scope of Claims 

 2163.06-Relationship of Written Description Requirement to New Matter 

 2163.07-Amendments to Application Which Are Supported in the Original Description 
 2163.07(a)-Inherent Function, Theory, or Advantage 

 2163.07(b)-Incorporation by Reference 

 
 

 
 

 2164-The Enablement Requirement 
 2164.01-Test of Enablement 
 2164.01(a)-Undue Experimentation Factors 

 2164.01(b)-How to Make the Claimed Invention 

 2164.01(c)-How to Use the Claimed Invention 

 
 

 2164.02-Working and Prophetic Examples 

 2164.03-Relationship of Predictability of the Art and the Enablement Requirement 

 2164.04-Burden on the Examiner Under the Enablement Requirement 

 2164.05-Determination of Enablement Based on Evidence as a Whole 
 2164.05(a)-Specification Must Be Enabling as of the Filing Date 

 2164.05(b)-Specification Must Be Enabling to Persons Skilled in the Art 

 
 

 2164.06-Quantity of Experimentation 
 2164.06(a)-Examples of Enablement Issues-Missing Information 

 2164.06(b)-Examples of Enablement Issues — Biological and Chemical Cases 

 2164.06(c)-Examples of Enablement Issues – Computer Programming Cases 

 
 

 2164.07-Relationship of Enablement Requirement to Utility Requirement of 35 U.S.C. 101 

 2164.08-Enablement Commensurate in Scope With the Claims 
 2164.08(a)-Single Means Claim 

 2164.08(b)-Inoperative Subject Matter 

 2164.08(c)-Critical Feature Not Claimed 

 
 

 
 

 2165-The Best Mode Requirement 
 2165.01-Considerations Relevant to Best Mode 

 2165.02-Best Mode Requirement Compared to Enablement Requirement 

 2165.03-Requirements for Rejection for Lack of Best Mode 

 2165.04-Examples of Evidence of Concealment 

 
 

 2166-Rejections Under 35 U.S.C. 112(a) or Pre-AIA 35 U.S.C. 112, First Paragraph 

 2167-2170-[Reserved] 

 2171-Two Separate Requirements for Claims Under 35 U.S.C. 112(b) or Pre-AIA 35 U.S.C. 112, Second Paragraph 

 2172-Subject Matter Which the Inventor or a Joint Inventor Regards as The Invention 
 2172.01-Unclaimed Essential Subject Matter 

 
 

 2173-Claims Must Particularly Point Out and Distinctly Claim the Invention 
 2173.01-Interpreting the Claims 

 2173.02-Determining Whether Claim Language is Definite 

 2173.03-Correspondence Between Specification and Claims 

 2173.04-Breadth Is Not Indefiniteness 

 2173.05-Specific Topics Related to Issues Under 35 U.S.C. 112(b) or Pre-AIA 35 U.S.C. 112, Second Paragraph 
 2173.05(a)-New Terminology 

 2173.05(b)-Relative Terminology 

 2173.05(c)-Numerical Ranges and Amounts Limitations 

 2173.05(d)-Exemplary Claim Language (“for example,” “such as”) 

 2173.05(e)-Lack of Antecedent Basis 

 2173.05(f)-Reference to Limitations in Another Claim 

 2173.05(g)-Functional Limitations 

 2173.05(h)-Alternative Limitations 

 2173.05(i)-Negative Limitations 

 2173.05(j)-Old Combination 

 2173.05(k)-Aggregation 

 2173.05(l)-[Reserved] 

 2173.05(m)-Prolix 

 2173.05(n)-Multiplicity 

 2173.05(o)-Double Inclusion 

 2173.05(p)-Claim Directed to Product-By- Process or Product and Process 

 2173.05(q)-“Use” Claims 

 2173.05(r)-Omnibus Claim 

 2173.05(s)-Reference to Figures or Tables 

 2173.05(t)-Chemical Formula 

 2173.05(u)-Trademarks or Trade Names in a Claim 

 2173.05(v)-Mere Function of Machine 

 
 

 2173.06-Practice Compact Prosecution 

 
 

 2174-Relationship Between the Requirements of 35 U.S.C. 112(a) and (b) or Pre-AIA 35 U.S.C. 112, First and Second Paragraphs 

 2175-Form Paragraphs for Use in Rejections Under 35 U.S.C. 112(b) or Pre-AIA 35 U.S.C. 112, Second Paragraph 

 2176-2180-[Reserved] 

 2181-Identifying and Interpreting a 35 U.S.C. 112(f) or Pre-AIA 35 U.S.C. 112, Sixth Paragraph Limitation 

 2182-Search and Identification of the Prior Art 

 2183-Making a Prima Facie Case of Equivalence 

 2184-Determining Whether an Applicant Has Met the Burden of Proving Nonequivalence After a Prima Facie Case Is Made 

 2185-Related Issues Under 35 U.S.C. 112(a) or (b) and Pre-AIA 35 U.S.C. 112, First or Second Paragraphs 

 2186-Relationship to the Doctrine of Equivalents 

 2187-Form Paragraphs for Use Relating to 35 U.S.C. 112(f) or Pre-AIA 35 U.S.C. 112, Sixth Paragraph 

 2188-2189-[Reserved] 

 2190-Prosecution Laches and Res Judicata 

 

 

 
 

 
 
 

 
 

 

 
 
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