35 USC. 102(a) – A person shall be entitled to a patent unless (a) the invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for patent.
Note: 102(a) applies if the invention was known or used before the date of invention (not the filing date) by a 3rd party. Overseas Activities – activities in NAFTA countries (12/8/93) and WTO countries (1/1/96) may be introduced to prove earlier conception and RTP.
Overcoming a 102(a) Rejection
- Prove an earlier date of invention (Rule 31) – 1) Swear behind a prior art reference; 2) Reduction to practice before the application filing date; or 3) Conception and diligence before the prior art reference until RTP
- Showing the references’ disclosure was derived from applicant – use disclaiming affidavits (“an affidavit or declaration under 37 CFR 1.131 antedating the reference”)
- Amend claims, arguing to examiner; of an earlier patent application [provisional, foreign (§119 is ok to establish earlier date of invention), divisional] – “a reply which perfects a claim of priority under 35 U.S.C. 119 (a)-(e) or 35 U.S.C. 120”
- Filing an application date sheet with specific reference to prior application
