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35 USC 102(g)

35 USC 102(g)"Prior Invention"

by patentbar on November 27, 2007 · 2 comments

in 35 USC 102(g), MPEP 2100

35 USC 102(g) “A person shall be entitled to a patent unless (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.”

Prior Invention

  • The first to reduce to practice (RTP) wins unless 2nd to RTP can prove earlier conception AND diligence from time prior to first’s conception to subsequent RTP or filing
  • Publications are not constructive RTP
  • Rule 131 can be used to swear behind prior art

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