Section 102
35 U.S.C. ยง 102, entitled "Conditions for Patentability", describes some of the conditions when a patent should not be granted to an inventor based on the concept of novelty. These conditions generally relate to when an invention is already known publicly. Each subsection of section 102 describes a different kind of prior art which can be used as evidence that an invention is already public. This includes inventions that have already been described in other patent applications or publications. It also includes inventions that have been on sale for more than a year before a patent application was filed. Netscape Commc'ns Corp. v. Konrad is an example of a case that focuses on the public use and on-sale criteria of this section.
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 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; 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.
Sections 102(a), (b) and (e) are the most important considerations when determining patentable subject matter during patent prosecution.
Read more about this topic: Title 35 Of The United States Code, Patentability
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