102(d) prior art - a new option being a german app that printed immediately

8. 35 USC 102(d) establishes four conditions which, if all are present, establish a bar against the granting of a patent in this

country. In accordance with the patent laws, rules and procedures as related in the MPEP, which of the following is not

one of the four conditions established by 35 USC 102(d)?

(A) The foreign application must be filed more than 12 months before the effective U.S. filing date.

(B) The foreign application must have been filed by the same applicant as in the United States or by his or her legal

representatives or assigns.

(C) The foreign patent or inventor’s certificate must be actually granted before the U.S. filing date.

(D) The foreign patent or inventor’s certificate must be actually granted and published before the U.S. filing date.

(E) The same invention must be involved.

8. ANSWER: (D) is the most correct answer. As set forth in MPEP § 2135, under the heading “General Requirements of

35 U.S.C. 102(d),” states “(C) The foreign patent or inventor’s certificate must be actually granted (e.g., by

sealing of the papers in Great Britain) before the U.S. filing date. It need not be published.” Answer (A) is

incorrect because it is one of the four conditions established by 35 U.S.C. § 102(d). MPEP § 2135, under the heading

“General Requirements of 35 U.S.C. 102(d),” states “(A) The foreign application must be filed more than 12 months

before the effective U.S. filing date….” Answer (B) is incorrect because it is one of the four conditions

established by 35 U.S.C. § 102(d). MPEP § 2135, under the heading “General Requirements of 35 U.S.C. 102(d),” states

“(B) The foreign application must have been filed by the same applicant as in the United States or by his or her legal

representatives or assigns.” Answer (C) is incorrect because it is one of the four conditions established by 35 U.S.C.

§ 102(d). MPEP § 2135, under the heading “General Requirements of 35 U.S.C. 102(d),” states “(C) The foreign patent

or inventor’s certificate must be actually granted (e.g., by sealing of the papers in Great Britain) before the

U.S. filing date. It need not be published.” Answer (E) is incorrect because it is one of the four conditions

established by 35 U.S.C. § 102(d). MPEP § 2135, under the heading “General Requirement of 35 U.S.C. 102(d)” states

“(D) The same invention must be involved.” See also MPEP § 2135.01(IV).