MPEP Q & A 302: Major differences between 35 U.S.C. 102(c) and the CREATE Act



What are the major differences between 35 U.S.C. 102(c) and the CREATE Act?


The major differences between 35 U.S.C. 102(c) and the CREATE Act are the following:

  1. 35 U.S.C. 102(c)is keyed to the effective filing date of the claimed invention, while the CREATE Act (pre-AIA 35 U.S.C. 103(c)) focuses on the date that the claimed invention was made; and
  2. The 2004 CREATE Act provisions (pre-AIA 35 U.S.C. 103(c)) only apply to obviousness rejections and not to anticipation and double patenting rejections. This follows from the fact that the CREATE Act merely provides that a reference may not be applied to support obviousness rejections under pre-AIA 35 U.S.C. 103(a), while the prior art exceptions of 35 U.S.C. 102(b)establish that a reference is not prior art for any purpose.

Chapter Details:

The answer to this question can be found in chapter 800 of the MPEP. This chapter covers Restriction in Applications Filed Under 35 U.S.C. 111; Double Patenting.

The answer is from the 9th Edition, Revision 07.2022, Published February 2023. Depending on future changes to the MPEP, the question and answer may or may not be applicable in later Editions or revisions.

Section Summary:

This question and answer comes from section 804.03 of the MPEP.  The following is a brief summary of section 804.03.

804.03 Commonly Owned Inventions of Different Inventive Entities; Non-Commonly Owned Inventions Subject to a Joint Research Agreement

This section covers double patenting in non-commonly owned inventions subject to a joint research agreement. The topics covered include double patenting. Claims in commonly owned applications of different inventive entities may be rejected on the ground of double patenting. The section also covers identifying commonly owned and non-commonly owned inventions subject to a joint research agreement as well as determining invention priority and rejections under 35 U.S.C. 102 and 103 and double patenting.

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