Prior Art Fundamentals


This practice note provides essential information and guidance for patent prosecutors on what qualifies as prior art for rejections under 35 U.S.C. § 102 and 35 U.S.C. § 103. Included is a section-by-section guide to the statutory requirements for what constitutes prior art, illustrated by examples, with a discussion of the types of circumstances that invoke the various exceptions to what qualifies as prior art. This practice note is also relevant to Patent Trial and Appeal Board (PTAB) proceedings and patent litigation in which the prior art status of a reference may be disputed.