Under pre-AIA 35 U.S.C. 102(e), an international application filed under the Patent Cooperation Treaty (PCT) has the prior art effect of an application filed in the United States only if which of the following conditions are satisfied?
According to pre-AIA 35 U.S.C. 102(e), an international application filed under the treaty defined in section 351(a) has the effect for the purposes of subsection 102(e) 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.
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According to MPEP § 2120.02, a rejection under 35 U.S.C. 102(a)(1) or pre-AIA 35 U.S.C. 102(a) or (b) regarding knowledge by others, public use, or placement of the invention on sale may be established by which of the following?
MPEP § 2120.02 states that an applicant may make an admission, or submit evidence of sale of the invention or knowledge of the invention by others, or the examiner may have personal knowledge that the invention was sold by applicant or known by others to establish or support a rejection under 35 U.S.C. 102(a)(1) or pre-AIA 35 U.S.C. 102(a) or (b).
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According to USPTO guidelines regarding prior art searches conducted by Office personnel, what should the search cover when determining what to search for?
According to the MPEP text, under 'What To Search For', the search should cover the claimed subject matter and should also cover the disclosed features which might reasonably be expected to be claimed. See MPEP § 904.02.
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According to MPEP § 2133.03(c) and In re Kollar, selling 'know-how' or licensing knowledge of a process where the process has not been carried out or performed does not constitute a 'sale' of the invention under pre-AIA 35 U.S.C. 102(b). However, the sale of a product made by the claimed process by the patentee or a licensee does constitute a sale of the process within the meaning of pre-AIA 35 U.S.C. 102(b).
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Under USPTO policy, how is matter treated that was canceled from a U.S. patent application prior to issuance or publication, and thus did NOT get published in the issued patent or patent application publication?
Canceled matter in the application file of a U.S. patent or application publication cannot be relied upon in a rejection under 35 U.S.C. 102(a)(2) or pre-AIA 35 U.S.C. 102(e). Canceled matter only becomes available as prior art as of the date the application file history becomes available to the public (Ex Parte Stalego).
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According to the USPTO guidelines citing Dynamic Drinkware, LLC v. National Graphics, Inc., under what condition is a reference (such as a U.S. patent or published U.S. patent application) entitled to the benefit of the filing date of a provisional application for prior art purposes?
The text explicitly states that a reference (e.g., a U.S. patent, published U.S. patent application, or WIPO publication) is entitled to the benefit of the filing date of a provisional application ONLY if at least one of the claims in the reference is supported by the written description of the provisional application in compliance with pre-AIA 35 U.S.C. 112, first paragraph or 35 U.S.C. 112(a), citing Dynamic Drinkware, LLC, v. National Graphics, Inc.
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According to MPEP guidelines regarding the examination of claims directed to a species or subgenus based upon a single prior art reference that discloses an encompassing genus, what step should Office personnel attempt first when the reference does not expressly disclose the particular claimed species or subgenus?
According to the MPEP, when a single prior art reference discloses a genus encompassing the claimed species or subgenus but does not expressly disclose the particular claimed species or subgenus, Office personnel should first attempt to find additional prior art to show that the differences between the primary reference and the claimed invention as a whole would have been obvious. If such additional art is not found, personnel then evaluate factors for a single reference 35 U.S.C. 103 rejection.
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Under pre-AIA patent law principles discussed in MPEP § 2138, an invention by one of the parties in a NAFTA or WTO member country may render the subject matter of a lost interference count unpatentable to the other party, even though such subject matter is not available as statutory prior art under pre-AIA 35 U.S.C. 102(g), based on which of the following principles?
According to MPEP § 2138.01, an invention by one of the parties in a NAFTA or WTO member country can render the subject matter of a lost count unpatentable to the other party under the principles of res judicata and collateral estoppel, even though such subject matter is not available as statutory prior art under pre-AIA 35 U.S.C. 102(g).
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How 35 U.S.C. 102 Novelty Is Tested on the 2026 Patent Bar Exam
35 U.S.C. 102 novelty and prior art qualification is the single highest-yield statutory topic on the USPTO Patent Bar Exam. Every question requires you to first check the effective filing date (March 16, 2013 cutoff under MPEP § 2159) to determine whether First-Inventor-to-File (AIA 35 U.S.C. 102, MPEP §§ 2151–2158) or Pre-AIA 35 U.S.C. 102 (MPEP §§ 2131–2138) governs.
For AIA applications, the exam heavily tests 35 U.S.C. 102(a)(1) public disclosures (patented, printed publication, in public use, on sale, or otherwise available to the public anywhere in the world before the effective filing date) and the 1-year grace period exceptions under 35 U.S.C. 102(b)(1)(A) (inventor-originated disclosures) and 102(b)(1)(B) (intervening third-party disclosures after an inventor public disclosure).
Under AIA 35 U.S.C. 102(a)(2) and MPEP § 2154, you are tested on U.S. patents, U.S. patent application publications, and WIPO-published PCT applications designating the United States that name another inventor and were effectively filed before the application under examination, as well as the 102(b)(2)(A), (B), and (C) common-ownership and joint research agreement exceptions.
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Does the Patent Bar still test Pre-AIA 35 U.S.C. 102 in 2026?
Yes. Both AIA 35 U.S.C. 102 and Pre-AIA 35 U.S.C. 102(a), (b), (e), and (g) are actively tested on the 2026 Patent Bar Exam. Always inspect the question stem for filing dates before March 16, 2013 or explicit "pre-AIA" labels.
Does a WIPO-published PCT application have to be in English to be AIA 102(a)(2) prior art?
No. Under AIA 35 U.S.C. 102(a)(2) and MPEP § 2154.01(a), a WIPO-published PCT application that designates the United States qualifies as prior art as of its filing/priority date regardless of publication language. By contrast, under Pre-AIA 102(e), English publication was required.
Can a 37 CFR 1.131 affidavit swear behind an AIA 102(a)(1) or 102(a)(2) rejection?
No. A 37 CFR 1.131 affidavit (prior invention) applies only to Pre-AIA applications. For AIA applications, applicants must use a 37 CFR 1.130(a) attribution declaration or 37 CFR 1.130(b) prior public disclosure declaration.