MPEP 2139
Rejections Under Pre-AIA 35 U.S.C. 102

Ninth Edition of the MPEP, Revision 10.2019, Last Revised in June 2020

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2139    Rejections Under Pre-AIA 35 U.S.C. 102 [R-10.2019]

Any application filed before March 16, 2013, is governed by pre-AIA 35 U.S.C. 102 and 103 (i.e., the application is a pre-AIA first to invent application). Note that neither the filing of a request for continued examination, nor entry into the national stage under 35 U.S.C. 371, constitutes the filing of a new application. Accordingly, such an application remains subject to pre-AIA 35 U.S.C. 102 and 103 even if a request for continued examination under 37 CFR 1.114 is filed on or after March 16, 2013, in an application that was filed before March 16, 2013. Similarly, a PCT application filed under 35 U.S.C. 363 before March 16, 2013, is subject to pre-AIA 35 U.S.C. 102 and 103, regardless of whether the application enters the national stage under 35 U.S.C. 371 before or after March 16, 2013.

Certain applications filed on or after March 16, 2013 that claim the benefit of a filing date earlier than March 16, 2013 under 35 U.S.C. 120, 121, or 365 are also governed by pre-AIA 35 U.S.C. 102; see MPEP § 2159 et seq. for guidance in determining whether such an application is subject to examination under the first to invent prior art regime.