2132 35 U.S.C. 102(a)

35 U.S.C. 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 a patent.

I. “KNOWN OR USED”

“Known or Used” Means Publicly Known or Used

“The statutory language ‘known or used by others in this country’ (35 U.S.C. § 102(a)), means knowledge or use which is accessible to the public.” Carella v. Starlight Archery, 804 F.2d 135, 231 USPQ 644 (Fed. Cir. 1986). The knowledge or use is accessible to the public if there has been no deliberate attempt to keep it secret. W. L. Gore & Assoc. v. Garlock, Inc., 721 F.2d 1540, 220 USPQ 303 (Fed. Cir. 1983).

CARELLA

In arguing that the citation of the references is improper, Appellants contend that citable “prior art must contain some teaching, suggestion or incentive to combine the individually known elements or features in such a manner as to result in the claimed invention.” App. Br. 9 (citing Carella v. Starlight Archery and Pro Line Co., 804 F.2d 135 (Fed. Cir. 1986);

GORE

W.L. Gore & Assocs. v. Garlock, Inc., 721 F.2d 1540, 1554 (Fed. Cir. 1983) (“Anticipation of inventions set forth in product claims cannot be predicated on mere conjecture respecting the characteristics of products that might result from the practice of processes disclosed in references.”)

II. “IN THIS COUNTRY”

Only Knowledge or Use in the U.S. Can Be Used in a 35 U.S.C. 102(a) Rejection

III. “BY OTHERS”

“Others” Means Any Combination of Authors or Inventors Different Than the Inventive Entity

IV. “PATENTED IN THIS OR A FOREIGN COUNTRY”

2132.01 Publications as 35 U.S.C. 102(a) Prior Art

35 U.S.C. 102(a) PRIMA FACIE CASE IS ESTABLISHED IF REFERENCE PUBLICATION IS “BY OTHERS”

APPLICANT CAN REBUT PRIMA FACIE CASE BY SHOWING REFERENCE’S DISCLOSURE WAS DERIVED FROM APPLICANT’S OWN WORK

A 37 CFR 1.131 AFFIDAVIT CAN BE USED TO OVERCOME A 35 U.S.C. 102(a) REJECTION

GORE

W.L. Gore & Assocs. v. Garlock, Inc., 721 F.2d 1540, 1554 (Fed. Cir. 1983) (“Anticipation of inventions set forth in product claims cannot be predicated on mere conjecture respecting the characteristics of products that might result from the practice of processes disclosed in references.”)