Q) 102 dates (10.02.17a)

by patentbar on August 25, 2008 · 6 comments

in Exam Questions

17. Which of the following statements is true?

(A) In the context of 35 USC 102(b), a magazine need only be placed in the mail to be effective as a printed publication.

(B) The earliest date declassified printed material may be taken as prima facie evidence of prior knowledge under 35 USC 102(a) is as of the date the material is cataloged and placed on the shelf of a public library.

(C) Declassified printed material is effective as a printed publication under 35 USC 102(b) as of the date of its release following declassification.

(D) The American Inventors Protection Act (AIPA) amended 35 USC 102(e) to provide that U.S. patents, U.S. application publications, and certain international application publications can be used as prior art under 35 USC 102(e) based on their earliest effective filing date only against applications filed on or after November 29, 2000.

(E) The American Inventors Protection Act (AIPA) amended 35 USC 102(e) to provide that U.S. patents, U.S. application publications, and certain international application publications can be used as prior art under 35 USC 102(e) based on their earliest effective filing date only against applications filed prior to November 29, 2000 which have been voluntarily published.

17. ANSWER: (C) is correct. MPEP § 707.05(f) states, “In the use of [declassified material] …
as an anticipatory publication, the date of release following declassification is the effective date
of publication within the meaning of the statute.” (A) is wrong. MPEP § 706.02(a) states, “A
magazine is effective as a printed publication under 35 U.S.C. § 102(b) as of the date it reached
the addressee and not the date it was placed in the mail.” (B) is wrong. MPEP § 707.05(f)
states, “For the purpose of anticipation predicated upon prior knowledge under 35 U.S.C.
§102(a) the above noted declassified material may be taken as prima facie evidence of such prior
knowledge as of its printing date even though such material was classified at that time.” (D) and
(E) are wrong. The AIPA amended 35 U.S.C. § 102(e) to provide that U.S. patents, U.S.
application publications, and certain international application publications can be used as prior
art under 35 U.S.C. § 102(e) based on their earliest effective filing date against applications filed
on or after November 29, 2000, and applications filed prior to November 29, 2000 which have
been voluntarily published. MPEP § 706.02(a).

{ 6 comments… read them below or add one }

1 SeanNo Gravatar April 23, 2009 at 9:46 pm

I am sorry, but I don’t see anything about “voluntary publishing” before 11/29/00 anywhere in there. (aka, I do not like this question.)

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2 scruffNo Gravatar June 20, 2009 at 3:11 pm

agreed

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3 ScottNo Gravatar July 10, 2009 at 7:23 pm

The law has changed since this was written. (D) and (E) don’t make sense anymore under the new law. It’s much simpler now (I think), thankfully.

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4 triedandtestedNo Gravatar July 20, 2009 at 6:54 pm

Scott – you are right…ignore D and E

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5 StephenNo Gravatar August 12, 2010 at 2:18 am

I believe under 102(b) the prior art date is the date the declassified material is published, but under 102(a) for the purposes of anticipation it is the date of the actual filing of the declassified material.

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6 SolNo Gravatar March 30, 2012 at 8:23 pm

declassiefed material can be used under 102(a)

as evidence of “known by others” as of its printing date

or as “publication” of its release date

classifed material and “filing” have no connection unless you are talking about patent app under secrecy. Then it is 102(e) not 102(a) anymore.

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