新法35 USC

舊法35 USC

100(h)

The term 'joint research agreement' means a written contract, grant, or cooperative agreement entered into by 2 or more persons or entities for the performance of experimental, developmental, or research work in the field of the claimed invention.

103(c)(3)

For purposes of paragraph (2), the term "joint research agreement" means a written contract, grant, or cooperative agreement entered into by two or more persons or entities for the performance of experimental, developmental, or research work in the field of the claimed invention.

「共同研究協議」一詞，係指二或多個個人或實體簽署生效的書面契約、轉讓契據或合作協議，載有所請發明所屬領域之實驗、開發或研究工作規範。

35 USC 103(c)(2)所謂「共同研究協議」，係指二或多個個人或實體簽署生效的書面契約、轉讓契據或合作協議，載有所請發明所屬領域之實驗、開發或研究工作規範。

100(i)(1)

The term 'effective filing date' for a claimed invention in a patent or application for patent means—
(A) if subparagraph (B) does not apply, the actual filing date of the patent or the application for the patent containing a claim to the invention; or
(B) the filing date of the earliest application for which the patent or application is entitled, as to such invention, to a right of priority under section 119, 365(a), or 365(b) or to the benefit of an earlier filing date under section 120, 121, or 365(c).

MPEP 706.02.VI

The effective filing date of a U.S. application may be determined as follows:
(A)If the application is a continuation or divisional of one or more earlier U.S. applications or international applications and if the requirements of 35 U.S.C. 120 and 365(c), respectively, have been satisfied, the effective filing date is the same as the earliest filing date in the line of continuation or divisional applications.
(B)If the application is a continuation-in-part of an earlier U.S. application or international application, any claims in the new application not supported by the specification and claims of the parent application have an effective filing date equal to the filing date of the new application. Any claims which are fully supported under 35 U.S.C. 112 by the earlier parent application have the effective filing date of that earlier parent application.
(C)If the application claims foreign priority under 35 U.S.C. 119(a)-(d) or 365(a) or (b), the effective filing date is the filing date of the U.S. application, unless situation (A) or (B) as set forth above applies. . . .
(D)If the application properly claims benefit under 35 U.S.C. 119(e) to a provisional application, the effective filing date is the filing date of the provisional application for any claims which are fully supported under the first paragraph of 35 U.S.C. 112 by the provisional application.

一專利或專利申請案所請發明的「有效申請日」係指──
(A) 若35 USC 100(i)(1)(B)不適用，即含有該發明請求項之專利或專利申請案的實際申請日；或
(B) 若就此一發明而言，該專利或申請案有權依35 USC 119、365(a)、365(b)，或依35 USC 120、121、365(c)主張優先權，即最早優先權基礎案之申請日。

一美國申請案的有效申請日可依以下規則判定：
(A) 若該申請案為一或多件先申請美國申請案或國際申請案的連續案或分割案，且分別符合35 USC 120、365(c)規定要件，則有效申請日等同於連續案或分割案家族中最早的申請日。
(B) 若該請案為一先申請美國申請案或國際申請案的部分連續案，新申請案中不為母案說明書及申請專利範圍所支持的請求項，其有效申請日等同於該新申請案的申請日。依35 USC 112規定，獲先申請母案完全支持的請求項，其有效申請日為先申請母案的申請日。
(C) 若該申請案依35 USC 119(a)-(d)、365(a)或(b)主張外國優先權，除非有(A)或(B)前述狀況，否則其有效申請日即該美國申請案的申請日……
(D) 若該申請案依35 USC 119(e)主張一暫時案之優先權，任一請求項若能滿足35 USC 112第一段規定要件獲該暫時案完全支持，其有效申請日即該暫時案的申請日。

102
(a)(1)

A person shall be entitled to a patent unless—
the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention;

102
(a)

A person shall be entitled to a patent unless -
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

任何人應有權獲授專利，除非──
所請發明有效申請日前，所請發明已獲准授予專利、載於印刷刊物、公開使用、為販售之用，或以其他方式可為公眾取得；

任何人應有權獲授專利，除非──
在專利申請人發明之前，該發明在美國已為他人知悉或使用，或在美國或外國已獲准授予專利或載於印刷刊物

102
(b)(1)

Exceptions.—
(1) DISCLOSURES MADE 1 YEAR OR LESS BEFORE THE EFFECTIVE FILING DATE OF THE CLAIMED INVENTION.—A disclosure made 1 year or less before the effective filing date of a claimed invention shall not be prior art to the claimed invention under subsection (a)(1) if—
(A) the disclosure was made by the inventor or joint inventor or by another who obtained the subject matter disclosed directly or indirectly from the inventor or a joint inventor; or
(B) the subject matter disclosed had, before such disclosure, 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.

102
(b)

A person shall be entitled to a patent unless -
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

例外─
所請發明有效申請日前未逾一年所為揭露─若有以下狀況，則對該所請發明而言，此一揭露應未構成35 USC 102(a)(1)先前技術─
(A) 揭露人為（共同）發明人，或其他直/間接自前者取得揭露的主體內容者；或
(B) 在此揭露前，揭露的主體內容已先由前述人員公開揭露。

任何人應有權獲授專利，除非──
在美國申請專利之日逾一年前，該發明已在美國或外國獲准授予專利或載於印刷刊物，或在美國公開使用或為販售之用

102
(a)(2)

A person shall be entitled to a patent unless—
the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.

102
(e)

A person shall be entitled to a patent unless - 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,

任何人應有權獲授專利，除非──
所請發明已記載於依35 USC 151公告之專利或（視為）依35 USC 122(b)公開之專利申請案，而該專利或申請案所列發明人另有其人，且於所請發明有效申請日前即有效申請。

任何人應有權獲授專利，除非──
該發明已記載於－(1)專利申請人發明前由他人在美國申請、後依35 USC 122(b)公開之專利申請案，或(2)該專利申請人發明前由他人在美國申請、後獲准授予之專利。

102
(b)(2)

Exceptions.— DISCLOSURES APPEARING IN APPLICATIONS AND PATENTS- A disclosure shall not be prior art to a claimed invention under subsection (a)(2) if—
(A) the subject matter disclosed was obtained directly or indirectly from the inventor or a joint inventor;
(B) the subject matter disclosed had, before such subject matter was effectively filed under subsection (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; or

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; or

例外─載於申請案及專利之揭露─若有以下狀況，則對該所請發明而言，此一揭露應未構成35 USC 102(a)(2)先前技術─
(A) 揭露的主體內容直/間接得自（共同）發明人；
(B) 在〔載有〕此一〔揭露的〕主體內容〔之申請案或專利〕如35 USC 102(a)(2)敘述有效申請前，揭露的主體內容已先由以下人士公開揭露：（共同）發明人，或其他直/間接自前者取得揭露的主體內容者；或

惟依35 USC 351(a)定義條約所提出之國際申請案，若指定美國且依該條約第21條第(2)項以英文公開，在本項視同為在美國提岀之申請案；或

(C) the subject matter disclosed and the claimed invention, not later than the effective filing date of the claimed invention, were owned by the same person or subject to an obligation of assignment to the same person.

103 (c)(1)

Subject matter developed by another person, which qualifies as prior art only under one or more of subsections (e), (f), and (g) of section 102 of this title, shall not preclude patentability under this section where the subject matter and the claimed invention were, at the time the claimed invention was made, owned by the same person or subject to an obligation of assignment to the same person.

(C) 所請發明有效申請日或當日前，揭露的主體內容與所請發明為同人所有，或有義務讓予同人。

他人開發且僅構成35 USC 102(e)、(f)或/及(g)先前技術之主體內容，若與所請發明在後者發明時為同人所有，或有義務讓予同人，則不應依本項否定其可專利性。

102(c)

COMMON OWNERSHIP UNDER JOINT RESEARCH AGREEMENTS.— Subject matter disclosed and a claimed invention shall be deemed to have been owned by the same person or subject to an obligation of assignment to the same person in applying the provisions of subsection (b)(2)(C) if—
(1) the subject matter disclosed was developed and the claimed invention was made by, or on behalf of, 1 or more parties to a joint research agreement that was in effect on or before the effective filing date of the claimed invention;
(2) the claimed invention was made as a result of activities undertaken within the scope of the joint research agreement; and
(3) the application for patent for the claimed invention discloses or is amended to disclose the names of the parties to the joint research agreement.

103(c)(2)

For purposes of this subsection, subject matter developed by another person and a claimed invention shall be deemed to have been owned by the same person or subject to an obligation of assignment to the same person if -
(A) the claimed invention was made by or on behalf of parties to a joint research agreement that was in effect on or before the date the claimed invention was made;
(B) the claimed invention was made as a result of activities undertaken within the scope of the joint research agreement; and
(C) the application for patent for the claimed invention discloses or is amended to disclose the names of the parties to the joint research agreement.

以共同研究協議建立同人所有關係─對於35 USC 102(b)(2)(C)之應用，若有以下狀況，揭露的主體內容與所請發明應視為同人所有，或有義務轉讓予同人──
(1) 共同研究協議已於所請發明有效申請日或該日前生效，而揭露的主體內容、所請發明為（代表）協議一或複數參與方開發、發明；
(2) 所請發明是該共同研究協議規範活動的成果；且
(3) 載有所請發明的專利申請案（經修正後）揭露共同研究協議參與方名單。

依本項規定，如有以下情形，他人開發之主體內容與所請發明應視為同一人所擁有，或有義務轉讓予同一人：
(A) 共同研究協議已於所請發明發明時或發明前生效，而所請發明為（代表）協議參與方發明；
(B) 所請發明是該共同研究協議規範活動的成果；且
(C) 載有所請發明的專利申請案（經修正後）揭露共同研究協議參與方名單。

102(d)

PATENTS AND PUBLISHED APPLICATIONS EFFECTIVE AS PRIOR ART.—For purposes of determining whether a patent or application for patent is prior art to a claimed invention under subsection (a)(2), such patent or application shall be considered to have been effectively filed, with respect to any subject matter described in the patent or application—
(1) if paragraph (2) does not apply, as of the actual filing date of the patent or the application for patent; or
(2) if the patent or application for patent is entitled to claim a right of priority under section 119, 365(a), or 365(b), or to claim the benefit of an earlier filing date under section 120, 121, or 365(c), based upon 1 or more prior filed applications for patent, as of the filing date of the earliest such application that describes the subject matter.

MPEP 2136.03.I

35 U.S.C. 102(e) is explicitly limited to certain references "filed in the United States before the invention thereof by the applicant". . . . Foreign applications' filing dates that are claimed (via 35 U.S.C. 119(a) - (d), (f) or 365(a)) in applications, which have been published as U.S. or WIPO application publications or patented in the U.S., may not be used as 35 U.S.C. 102(e) dates for prior art purposes. . . .

專利及公開的申請案用作先前技術─為判斷一專利或專利申請案對所請發明是否構成35 USC 102(a)(2)先前技術，該專利或申請案（所描述的任何主體內容）應視同為於以下時點即已有效申請──
(1) 若35 USC 102(d)(2)不適用，該專利或專利申請案的實際申請日；或
(2) 若該專利或專利申請案有權依35 USC 119、365(a)、365(b)，或依35 USC 120、121、365(c)主張一或複數件先申請專利申請案優先權，描述該主體內容之最早優先權基礎案申請日。

35 USC 102(e)載明只限部分「該專利申請人發明前在美國申請」的文獻……。申請案經美國或WIPO公開或由美國公告，其（依35 USC 119(a)-(d)、(f)或365(a)）主張的外國申請案之申請日，不得用為35 USC 102(e)日期以作先前技術……

103

A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.

103(a)

A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102 of this title, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negatived by the manner in which the invention was made.

所請發明雖無35 USC 102完全被揭露之情事，惟以整體觀之，所請發明與先前技術間之差異，在所請發明有效申請日前，已為相關技術具通常技藝者所顯而易知，則仍不得准予專利。不應以該發明之發明方式否定其可專利性。

發明雖無35 USC 102完全被揭露或記載之情事，惟以整體觀之，所請主體內容與先前技術間之差異，在發明時已為相關技術具通常技藝者所顯而易知，則仍不得准予專利。不應以該發明之發明方式否定其可專利性。