
From the U.S. Code Online via GPO Access
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[Laws in effect as of January 2, 2001]
[Document not affected by Public Laws enacted between
  January 2, 2001 and January 28, 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 \1\ invention was described in--
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    \1\ So in original. Probably should not be capitalized.
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        (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); \2\ or

    \2\ 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.)


                      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

    1999--Subsec. (e). Pub. L. 106-113, Sec. 1000(a)(9) [title IV, 
Sec. 4505], 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 on date that is 1 year after Nov. 29, 1999, and 
applicable to all applications filed under section 111 of this title on 
or after that date, all applications complying with section 371 of this 
title that resulted from international applications filed on or after 
that date, and to any such application voluntarily published by the 
applicant under procedures established under Pub. L. 106-113, 
Sec. 1000(a)(9) [title IV, subtitle E (Secs. 4501-4508)] that is pending 
1 year after Nov. 29, 1999, see section 1000(a)(9) [title IV, Sec. 4508] 
of Pub. L. 106-113, 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 title, and six months in cases of designs, prior 
to the filing of the application in this country, in which case no 
patent shall be granted in this country.''


      Emergency Relief From Postal Situation Affecting Patent Cases

    Relief as to filing date of patent application or patent affected by 
postal situation beginning on Mar. 18, 1970, and ending on or about Mar. 
30, 1970, but patents issued with earlier filing dates not effective as 
prior art under subsec. (e) of this section of such earlier filing 
dates, see note set out under section 111 of this title.

                  Section Referred to in Other Sections

    This section is referred to in sections 103, 172, 273, 363, 374, 375 
of this title; title 15 section 638.
