MPEP Section 2128.02, Date Publication Is Available as a Reference
This document contains one section of the Manual of Patent Examining Procedure (the "M.P.E.P."), Eighth Edition, Fifth Revision (August 2006). This page was last updated in July 2007. You may return to the section index to find a particular section. Alternatively, you may search the MPEP use the search box that appears on the bottom of every page of BitLaw--be sure to restrict your search to the MPEP in the pop-up list.
2128.02 Date Publication Is Available as a Reference
DATE OF ACCESSIBILITY CAN BE SHOWN THROUGH EVIDENCE OF ROUTINE BUSINESS PRACTICES
Evidence showing routine business practices can be used to establish the date on which a publication became accessible to the public. Specific evidence showing when the specific document actually became available is not always necessary. Constant v. Advanced Micro-Devices, Inc., 848 F.2d 1560, 7 USPQ2d 1057 (Fed. Cir.), cert. denied, 988 U.S. 892 (1988) (Court held that evidence submitted by Intel regarding undated specification sheets showing how the company usually treated such specification sheets was enough to show that the sheets were accessible by the public before the critical date.); In re Hall, 781 F.2d 897, 228 USPQ 453 (Fed. Cir. 1986) (Librarian's affidavit establishing normal time frame and practice for indexing, cataloging and shelving doctoral theses established that the thesis in question would have been accessible by the public before the critical date.).
A JOURNAL ARTICLE OR OTHER PUBLICATION BECOMES AVAILABLE AS PRIOR ART ON DATE OF IT IS RECEIVED BY A MEMBER OF THE PUBLIC
A publication disseminated by mail is not prior art until it is received by at least one member of the public. Thus, a magazine or technical journal is effective as of its date of publication (date when first person receives it) not the date it was mailed or sent to the publisher. In re Schlittler, 234 F.2d 882, 110 USPQ 304 (CCPA 1956).