優惠期 新法 VS 舊法 - 專利

US 102(b)(1) & (b)(2)

Federal Register / Vol. 78, No. 31 /
Thursday, February 14, 2013 / Rules and Regulations

comment#30 p11065~p11066
http://www.uspto.gov/aia_implementation/FITF_Final_Guidelines_FR_2-14-2013.pdf


Comment30:
A number of comments, including comments from a number of universities and
university groups, opposed the Office's interpretation of the subparagraph
(B) provision of AIA 35 U.S.C. 102(b)(1) or 102(b)(2)
(the subparagraph (B) provision), requiring that the subject matter
previously publicly disclosed by the inventor be identical to the subject
matter of the disclosure to be disqualified under the subparagraph (B)
provision (identical subject matter approach).
The comments opposing the Office's
interpretation of the subparagraph (B) provision stated that:

...blablabla...etc.

Response:
As discussed previously, the starting point for construction of a statute is
the language of the statute itself.
Subparagraph (B) of each of AIA 35 U.S.C. 102(b)(1) and 102(b)(2) provides
that certain disclosures shall not be prior art if ''the subject matter
disclosed had, before such disclosure [or before such subject matter was
effectively filed under 102(a)(2)], been publicly disclosed by the inventor
or a joint inventor or another who obtained the subject matter disclosed
directly or indirectly from the inventor or a joint inventor.''
...(略)
The single instance of the phrase ''the subject matter'' in subparagraph (B)
of each of AIA 35 U.S.C. 102(b)(1) and 102(b)(2) cannot reasonably be read as
concurrently describing two discrete subject matters. Therefore, the single
instance of the phrase ''the subject matter'' in subparagraph (B) of each of
AIA 35 U.S.C. 102(b)(1) and 102(b)(2) cannot reasonably be interpreted as
including variations within its ambit.
AIA 35 U.S.C. 100 defines inventor and joint inventor or coinventor with
respect to the individual or individuals ''who invented or discovered the
subject matter of the invention, '' and defines "claimed invention'' as ''the
subject matter defined by a claim in a patent or an application for a patent.''

USPTO 這部分的guildline已經出了,很詳細,應該很好找。
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今日看到智財局布告欄內容,讚聲其舉,公布USPTO對 102(b)(1)和102(b)(2)的解釋給大家
參考。

研擬放寬專利優惠期事由及期間公眾諮詢會議
http://www.tipo.gov.tw/ct.asp?xItem=527343&ctNode=7127&mp=1


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