Name the four conditions which, if all are present, establish a statutory bar under pre-AIA 35 U.S.C. 102(d).
Pre-AIA 35 U.S.C. 102(d) establishes four conditions which, if all are present, establish a statutory bar against the granting of a patent in this country:
- (A) The foreign application must be filed more than 12 months before the effective filing date of the United States application.
- (B) The foreign and United States applications must be filed by the same applicant, his or her legal representatives or assigns.
- (C) The foreign application must have actually issued as a patent or inventor’s certificate (e.g., granted by sealing of the papers in Great Britain) before the filing in the United States. It need not be published but the patent rights granted must be enforceable.
- (D) The same invention must be involved.
The answer to this question can be found in chapter 2100 of the MPEP. This chapter covers Patentability.
The answer is from the 9th Edition, Revision 07.2015. Depending on future changes to the MPEP, the question and answer may or may not be applicable in later Editions or revisions.
This question and answer comes from section 2135 of the MPEP. The following is a brief summary of section 2135.
2135 Pre-AIA 35 U.S.C. 102(d)
This section discusses pre-AIA 35 U.S.C. 102(d) which covers how a person shall be entitled to a patent unless 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.