[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 35USC102]
TITLE 35--PATENTS
PART II--PATENTABILITY OF INVENTIONS AND GRANT OF PATENTS
CHAPTER 10--PATENTABILITY OF INVENTIONS
Sec. 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; \1\ or
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\1\ So in original. The semicolon probably should be a comma.
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(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.
(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.)
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
