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35 USC Sec. 102 01/03/2007-EXPCITE-
TITLE 35 - PATENTS
PART II - PATENTABILITY OF INVENTIONS AND GRANT OF PATENTS
CHAPTER 10 - PATENTABILITY OF INVENTIONS-HEAD-
Sec. 102. Conditions for patentability; novelty and loss of right
to patent-STATUTE-
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.)-MISC1-
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."
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.
1972 - Subsec. (d). Pub. L. 92-358 inserted reference to
inventions that were the subject of an inventors' certificate.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.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.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.-FOOTNOTE-
(!1) So in original. The semicolon probably should be a comma.
