Patent Bar Exam Patentability Requirements & Procedures 3

Question 1

Under the AIA, which of the following correctly describes the 'prior commercial use' defense under 35 U.S.C. § 273?

Accepted Answer

It is available to any entity that commercially used the process or machine at least 1 year before the effective filing date

Answer

The prior commercial use defense under § 273 protects anyone who commercially used the subject matter at least 1 year before the effective filing date, but it is a personal defense, not a patent invalidation.

Question 2

Which statutory category under 35 U.S.C. § 101 does NOT explicitly appear in the statute?

Accepted Answer

Software

Answer

§ 101 recites process, machine, manufacture, and composition of matter — software is not explicitly listed and its eligibility depends on whether it falls within these categories.

Question 3

Under MPEP § 2131, a prior art reference anticipates a claim only if it discloses every element of the claim:

Accepted Answer

Either explicitly or inherently in one reference

Answer

Anticipation requires that every claim limitation be disclosed, either explicitly or inherently, in a single prior art reference.

Question 4

A patent claim recites 'a widget comprising element A, element B, and element C.' An accused product has elements A, B, C, and D. Under literal infringement analysis, the accused product:

Accepted Answer

Infringes because 'comprising' is an open-ended transition

Answer

The open-ended term 'comprising' means the claim covers the listed elements plus additional elements, so having element D does not avoid infringement.

Question 5

Under 35 U.S.C. § 119(e), a nonprovisional application claiming priority to a provisional application must be filed within how many months of the provisional filing date?

Accepted Answer

12 months

Answer

A nonprovisional claiming § 119(e) priority must be filed within 12 months of the provisional's filing date.

Patent Bar Exam Practice Test

Patent Bar Exam Practice Test

Patent Bar Exam Patentability Requirements & Procedures 3