Comments on: 35 USC 102(b) "Statutory Bar"

By: Subhash Garg

Subhash Garg — Thu, 05 Apr 2012 03:00:10 +0000

What is meant by the tern “use”? Suppose my invention (or a product with my invention hidden inside) is physically located and visible in a public place, without being identified as new, and said invention or product is not in operation. Does that mean public “use”?

For example, suppose I have an engine on display (but without terms of sale() in a trade show, and it contains a spark plug invention. If the engine is never turned on, and therefore the spark plug is never used, can I claim that there was no public use?

By: Patfield

Patfield — Fri, 15 Jul 2011 14:20:24 +0000

(E) Perfecting a claim to priority under 35 U.S.C. 119(a)-(d) within the time period set in 37 CFR 1.55(a)(1) or filing a grantable petition under 37 CFR 1.55(c). See MPEP § 201.13. The foreign priority filing date must antedate the reference and be perfected. The filing date of the priority document is not perfected unless applicant has filed a certified priority document in the application (and an English language translation, if the document is not in English) (see 37 CFR 1.55(a)(3)) and the examiner has established that the priority document satisfies the enablement and description requirements of 35 U.S.C. 112, first paragraph; or

By: Jerome Shaunnessey

Jerome Shaunnessey — Wed, 07 Jul 2010 20:37:49 +0000

My patent is currently under Ex Parte Reexamination
and one of my claims has been rejected as obvious
under 103(a) and a statuatory bar under 102(b) to
filing a Affidavit of Prior inventorship under 37 CFR
1.131.

My ‘Affidavit’ states that the invention of my patent;
occured on September 12, 1981. 11 years before
the dates of the prior art references.

What the ‘Statuatory Bar’ actually does is negates
a ‘disclosure document’ and the United States
First to Invent system. It penalizes the inventor
for not filing for a patent soon after he completes
his invention.

Such a ‘Bar’ favors corporations and discriminates
against the independent inventor, and completely
negates the value of a ‘disclosure document’

The ‘Bar’ is absurd. because saying that something
is obvious after it was proven to been invented
before one found it to be obvious

America has already went to the First to File
system.

By: Brett

Brett — Tue, 06 Oct 2009 18:24:42 +0000

Swearing behind a reference means that you provide a 37 CFR 1.131 affidavit that shows that you were the first to invent and either the first to reduce the invention to practice or, if you were the first to invent, but the reference has an effective priority date before your invention was reduced to practice, the affidavit must also show that you used due diligence from the time just prior to the reference’s effective date up to your actual or constructive (the filing of the application) reduction to practice.

Due diligence is usually characterized by affirmative reasons for the delay in filing or by acceptable excuses.

By: Brett

Brett — Tue, 06 Oct 2009 18:12:20 +0000

Not really correct. A 102(b) rejection arises when ANYONE including the inventor discloses the invention (or publicly uses or offers to sell in US) more than one year before the applicant’s effective filing date.

102(b) is known as a “statutory bar” to patent rights because it prevents the inventor from making his/her rights exclusive when they have waited more than a year after disclosing the invention to the public in some way before filing a patent application.

Prior art under 102(a) would be where the invention was known or used by OTHERS in the US, or patented or described in a printed publication in the US or a foreign country, before the invention thereof by the applicant for a patent. However, if this disclosure happened more than one year prior to the applicant’s filing date, the examiner will still use a 102(b) rejection.

By: Ryan

Ryan — Wed, 05 Aug 2009 00:09:05 +0000

The difference between 102 (a) and 102 (b) comes down to who triggers the statutory bar.

In 102 (a), this is triggered by a 3RD PARTY placing the invention in the possession of the public before the inventor invents the subject matter to be patented. Such an event is considered lack of novelty.

In 102 (b), the bar is triggered by the INVENTOR placing the invention in the possession of the public more than one year prior to the patent application. Such an event is considered a loss of right, since it was the inventor who forfeited their right to patent either by placing it in the public’s possession themselves, or letting it slip into the hands of a 3rd party who does it for them.

By: Alex

Alex — Mon, 29 Jun 2009 16:32:36 +0000

Can somebady explain the differences between 102 (a) and 102 (b)? It is confusing to me…
In Overcoming a 102(a) Rejection: Prove an earlier date of invention (Rule 31) – 1) Swear behind a prior art reference. What does mean by “swear behind a prior art reference”?

Thanks, Alex

By: Inventors Beware - Publishing Your Idea Puts You at Risk of Forfeiting Patent Rights. « Riddle Patent Law Blog

Tue, 31 Mar 2009 18:31:41 +0000

[...] the US, it’s called a statutory bar – and it is set forth in section 102(b) of the patent statute. To solve this issue and avoid loss [...]