United States Code/Title 35/Chapter 10/Section 102

by the United States Government

Section 102. Conditions for patentability; novelty and loss of right to patent

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, or

(b) the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of the application for patent in the United States, or

(c) he has abandoned the invention, or

(d) 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, or

(e) the invention was described in (1) an application for patent, published under section 122(b), by another filed in the United States before the invention by the applicant for patent or (2) a patent granted on an application for patent by another filed in the United States before the invention by the applicant for patent, except that an international application filed under the treaty defined in section 351(a) shall have the effects for the purposes of this subsection of an application filed in the United States only if the international application designated the United States and was published under Article 21(2) of such treaty in the English language;^[1] or

(f) he did not himself invent the subject matter sought to be patented, or

(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.

Source

(July 19, 1952, ch. 950, 66 Stat. 797; Pub. L. 92-358, Sec. 2, July 28, 1972, 86 Stat. 502; Pub. L. 94-131, Sec. 5, Nov. 14, 1975, 89 Stat. 691; Pub. L. 106-113, div. B, Sec. 1000(a)(9) [title IV, Secs. 4505, 4806], Nov. 29, 1999, 113 Stat. 1536, 1501A-565, 1501A-590; Pub. L. 107-273, div. C, title III, Sec. 13205(1), Nov. 2, 2002, 116 Stat. 1902.)

Historical and Revision Notes

Paragraphs (a), (b), and (c) are based on Title 35, U.S.C., 1946 ed., Sec. 31 (R.S. 4886, amended (1) Mar. 3, 1897, ch. 391, Sec. 1, 29 Stat. 692, (2) May 23, 1930, ch. 312, Sec. 1, 46 Stat. 376, (3) Aug. 5, 1939, ch. 450, Sec. 1, 53 Stat. 1212).

No change is made in these paragraphs other than that due to division into lettered paragraphs. The interpretation by the courts of paragraph (a) as being more restricted than the actual language would suggest (for example, “known” has been held to mean “publicly known”) is recognized but no change in the language is made at this time. Paragraph (a) together with section 104 contains the substance of Title 35, U.S.C., 1946 ed., Sec. 72 (R.S. 4923).

Paragraph (d) is based on Title 35, U.S.C., 1946 ed., Sec. 32, first paragraph (R.S. 4887 (first paragraph), amended (1) Mar. 3, 1897, ch. 391, Sec. 3, 29 Stat. 692, 693, (2) Mar. 3, 1903, ch. 1019, Sec. 1, 32 Stat. 1225, 1226, (3) June 19, 1936, ch. 594, 49 Stat. 1529).

The section has been changed so that the prior foreign patent is not a bar unless it was granted before the filing of the application in the United States.

Paragraph (e) is new and enacts the rule of Milburn v. Davis-Bournonville, 270 U.S. 390, by reason of which a United States patent disclosing an invention dates from the date of filing the application for the purpose of anticipating a subsequent inventor.

Paragraph (f) indicates the necessity for the inventor as the party applying for patent. Subsequent sections permit certain persons to apply in place of the inventor under special circumstances.

Paragraph (g) is derived from Title 35, U.S.C., 1946 ed., Sec. 69 (R.S. 4920, amended (1) Mar. 3, 1897, ch. 391, Sec. 2, 29 Stat. 692, (2) Aug. 5, 1939, ch. 450, Sec. 1, 53 Stat. 1212), the second defense recited in this section. This paragraph retains the present rules of law governing the determination of priority of invention.

Language relating specifically to designs is omitted for inclusion in subsequent sections.

Amendments

2002

Subsec. (e). Pub. L. 107-273, amended Pub. L. 106-113, Sec. 1000(a)(9) [title IV, Sec. 4505]. See 1999 Amendment note below. Prior to being amended by Pub. L. 107-273, Pub. L. 106-113, Sec. 1000(a)(9) [title IV, Sec. 4505], had amended subsec. (e) to read as follows: “The invention was described in—

“(1) an application for patent, published under section 122(b), by another filed in the United States before the invention by the applicant for patent, except that an international application filed under the treaty defined in section 351(a) shall have the effect under this subsection of a national application published under section 122(b) only if the international application designating the United States was published under Article 21(2)(a) of such treaty in the English language; or

“(2) a patent granted on an application for patent by another filed in the United States before the invention by the applicant for patent, except that a patent shall not be deemed filed in the United States for the purposes of this subsection based on the filing of an international application filed under the treaty defined in section 351(a); or”.

1999

Subsec. (e). Pub. L. 106-113, Sec. 1000(a)(9) [title IV, Sec. 4505], as amended by Pub. L. 107-273, amended subsec. (e) generally. Prior to amendment, subsec. (e) read as follows: “the invention was described in a patent granted on an application for patent by another filed in the United States before the invention thereof by the applicant for patent, or on an international application by another who has fulfilled the requirements of paragraphs (1), (2), and (4) of section 371(c) of this title before the invention thereof by the applicant for patent, or”.

Subsec. (g). Pub. L. 106-113, Sec. 1000(a)(9) [title IV, Sec. 4806], amended subsec. (g) generally. Prior to amendment, subsec. (g) read as follows: “before the applicant's invention thereof the invention was made in this country by another who had not abandoned, suppressed, or concealed it. In determining priority of invention 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.”

Effective Date of 1999 Amendment

Amendment by section 1000(a)(9) [title IV, Sec. 4505] of Pub. L. 106-113 effective Nov. 29, 2000 and applicable to all patents and all applications for patents pending on or filed after Nov. 29, 2000, see section 1000(a)(9) [title IV, Sec. 4508] of Pub. L. 106-113, as amended, set out as a note under section 10 of this title.

1975

Par. (e). Pub. L. 94-131 inserted provision for nonentitlement to a patent where the invention was described in a patent granted on an international application by another who has fulfilled the requirements of pars. (1), (2), and (4) of section 371(c) of this title before the invention thereof by the applicant for patent.

Effective Date of 1975 Amendment

Amendment by Pub. L. 94-131 effective Jan. 24, 1978, and applicable on and after that date to patent applications filed in the United States and to international applications, where applicable, see section 11 of Pub. L. 94-131, set out as an Effective Date note under section 351 of this title.

1972

Subsec. (d). Pub. L. 92-358 inserted reference to inventions that were the subject of an inventors' certificate.

Effective Date of 1972 Amendment

Section 3(b) of Pub. L. 92-358 provided that: “Section 2 of this Act [amending this section] shall take effect six months from the date when Articles 1 to 12 of the Paris Convention of March 20, 1883, for the Protection of Industrial Property, as revised at Stockholm, July 14, 1967, come into force with respect to the United States [Aug. 25, 1973] and shall apply to applications thereafter filed in the United States.”

Savings Provision

Section 4 of act July 19, 1952, ch. 950, 66 Stat. 815, provided that subsection (d) of this section should not apply to existing patents and pending applications, but that the law previously in effect, namely the first paragraph of R.S. 4887 [first paragraph of section 32 of former Title 35], should apply to such patents and applications. Said paragraph of section 32 provided that:

“No person otherwise entitled thereto shall be debarred from receiving a patent for his invention or discovery, nor shall any patent be declared invalid by reason of its having been first patented or caused to be patented by the inventor or his legal representatives or assigns in a foreign country, unless the application for said foreign patent was filed more than twelve months, in cases within the provisions of section 31 of this title, and six months in cases of designs, prior to the filing of the application in this country, in which case no patent shall be granted in this country.”

Emergency Relief from Postal Situation Affecting Patent Cases

Relief as to filing date of patent application or patent affected by postal situation beginning on Mar. 18, 1970, and ending on or about Mar. 30, 1970, but patents issued with earlier filing dates not effective as prior art under subsec. (e) of this section of such earlier filing dates, see note set out under section 111 of this title.

Note

1. So in original. The semicolon probably should be a comma.