新法35 USC

旧法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.

「共同研究协议」一词，系指二或多个个人或实体签署生效的书面契约、转让契据或合作协议，载有所请发明所属领域之实验、开发或研究工作规范。

35 USC 103(c)(2)所谓「共同研究协议」，系指二或多个个人或实体签署生效的书面契约、转让契据或合作协议，载有所请发明所属领域之实验、开发或研究工作规范。

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.

一专利或专利申请案所请发明的「有效申请日」系指──
(A) 若35 USC 100(i)(1)(B)不适用，即含有该发明权利要求之专利或专利申请案的实际申请日；或
(B) 若就此一发明而言，该专利或申请案有权依35 USC 119、365(a)、365(b)，或依35 USC 120、121、365(c)主张优先权，即最早优先权基础案之申请日。

一美国申请案的有效申请日可依以下规则判定：
(A) 若该申请案为一或多件先申请美国申请案或国际申请案的连续案或分割案，且分别符合35 USC 120、365(c)规定要件，则有效申请日等同于连续案或分割案家族中最早的申请日。
(B) 若该申请案为一先申请美国申请案或国际申请案的部分连续案，新申请案中不为母案说明书及权利要求所支持的权利要求，其有效申请日等同于该新申请案的申请日。依35 USC 112规定，获先申请母案完全支持的权利要求，其有效申请日为先申请母案的申请日。
(C) 若该申请案依35 USC 119(a)-(d)、365(a)或(b)主张外国优先权，除非有(A)或(B)前述状况，否则其有效申请日即该美国申请案的申请日……
(D) 若该申请案依35 USC 119(e)主张一暂时案之优先权，任一权利要求若能满足35 USC 112第一段规定要件获该暂时案完全支持，其有效申请日即该暂时案的申请日。

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

任何人应有权获授专利，除非──
所请发明有效申请日前，所请发明已获准授予专利、载于印刷刊物、公开使用、为贩卖之用，或以其它方式可为公众取得；

任何人应有权获授专利，除非──
在专利申请人发明之前，该发明在美国已为他人知悉或使用，或在美国或外国已获准授予专利或载于印刷刊物

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─
所请发明有效申请日前未逾一年所为揭露─若有以下状况，则对该所请发明而言，此一揭露应未构成35 USC 102(a)(1)先前技术─
(A) 揭露人为（共同）发明人，或其它直/间接自前者取得揭露的主体内容者；或
(B) 在此揭露前，揭露的主体内容已先由前述人员公开揭露。

任何人应有权获授专利，除非──
在美国申请专利之日逾一年前，该发明已在美国或外国获准授予专利或载于印刷刊物，或在美国公开使用或为贩卖之用

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,

任何人应有权获授专利，除非──
所请发明已记载于依35 USC 151公告之专利或（视为）依35 USC 122(b)公开之专利申请案，而该专利或申请案所列发明人另有其人，且于所请发明有效申请日前即有效申请。

任何人应有权获授专利，除非──
该发明已记载于－(1)专利申请人发明前由他人在美国申请、后依35 USC 122(b)公开之专利申请案，或(2)该专利申请人发明前由他人在美国申请、后获准授予之专利。

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[.]

例外─载于申请案及专利之揭露
─若有以下状况，则对该所请发明而言，此一揭露应未构成35 USC 102(a)(2)先前技术─
(A) 揭露的主体内容直/间接得自（共同）发明人；
(B) 在〔载有〕此一〔揭露的〕主体内容〔之申请案或专利〕如35 USC 102(a)(2)叙述有效申请前，揭露的主体内容已先由以下人士公开揭露：（共同）发明人，或其它直/间接自前者取得揭露的主体内容者；或

惟依35 USC 351(a)定义条约所提出之国际申请案，若指定美国且依该条约第21条第(2)项以英文公开，在本项视同为在美国提岀之申请案〔。〕

(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) 所请发明有效申请日或当日前，揭露的主体内容与所请发明为同人所有，或有义务让予同人。

他人开发且仅构成35 USC 102(e)、(f)或/及(g)先前技术之主体内容，若与所请发明在后者发明时为同人所有，或有义务让予同人，则不应依本项否定其可专利性。

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.

以共同研究协议建立同人所有关系
─对于35 USC 102(b)(2)(C)之应用，若有以下状况，揭露的主体内容与所请发明应视为同人所有，或有义务转让予同人──
(1) 共同研究协议已于所请发明有效申请日或该日前生效，而揭露的主体内容、所请发明为（代表）协议一或复数参与方开发、发明；
(2) 所请发明是该共同研究协议规范活动的成果；且
(3) 载有所请发明的专利申请案（经修正后）揭露共同研究协议参与方名单。

依本项规定，如有以下情形，他人开发之主体内容与所请发明应视为同一人所拥有，或有义务转让予同一人：
(A) 共同研究协议已于所请发明发明时或发明前生效，而所请发明为（代表）协议参与方发明；
(B) 所请发明是该共同研究协议规范活动的成果；且
(C) 载有所请发明的专利申请案（经修正后）揭露共同研究协议参与方名单。

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. . . .

专利及公开的申请案用作先前技术
─为判断一专利或专利申请案对所请发明是否构成35 USC 102(a)(2)先前技术，该专利或申请案（所描述的任何主体内容）应视同为于以下时点即已有效申请──
(1) 若35 USC 102(d)(2)不适用，该专利或专利申请案的实际申请日；或
(2) 若该专利或专利申请案有权依35 USC 119、365(a)、365(b)，或依35 USC 120、121、365(c)主张一或复数件先申请专利申请案优先权，描述该主体内容之最早优先权基础案申请日。

35 USC 102(e)载明只限部分「该专利申请人发明前在美国申请」的文献……。申请案经美国或WIPO公开或由美国公告，其（依35 USC 119(a)-(d)、(f)或365(a)）主张的外国申请案之申请日，不得用为35 USC 102(e)日期以作先前技术……

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.

所请发明虽无35 USC 102完全被揭露之情事，惟以整体观之，所请发明与先前技术间之差异，在所请发明有效申请日前，已为相关技术具通常技艺者所显而易知，则仍不得准予专利。不应以该发明之发明方式否定其可专利性。

发明虽无35 USC 102完全被揭露或记载之情事，惟以整体观之，所请主体内容与先前技术间之差异，在发明时已为相关技术具通常技艺者所显而易知，则仍不得准予专利。不应以该发明之发明方式否定其可专利性。