35 U.S.C. § 100

Definitions

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When used in this title unless the context otherwise indicates—(a) The term “invention” means invention or discovery.(b) The term “process” means process, art or method, and includes a new use of a known process, machine, manufacture, composition of matter, or material.(c) The terms “United States” and “this country” mean the United States of America, its territories and possessions.(d) The word “patentee” includes not only the patentee to whom the patent was issued but also the successors in title to the patentee.(e) The term “third-party requester” means a person requesting ex parte reexamination under section 302 who is not the patent owner.(f) The term “inventor” means the individual or, if a joint invention, the individuals collectively who invented or discovered the subject matter of the invention.(g) The terms “joint inventor” and “coinventor” mean any 1 of the individuals who invented or discovered the subject matter of a joint invention.(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.(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), 365(b), 386(a), or 386(b) or to the benefit of an earlier filing date under section 120, 121, 365(c), or 386(c).(2) The effective filing date for a claimed invention in an application for reissue or reissued patent shall be determined by deeming the claim to the invention to have been contained in the patent for which reissue was sought.(j) The term “claimed invention” means the subject matter defined by a claim in a patent or an application for a patent.(July 19, 1952, ch. 950, 66 Stat. 797; Pub. L. 106–113, div. B, § 1000(a)(9) [title IV, § 4603], Nov. 29, 1999, 113 Stat. 1536, 1501A–567; Pub. L. 112–29, § 3(a), Sept. 16, 2011, 125 Stat. 285; Pub. L. 112–211, title I, § 102(1), Dec. 18, 2012, 126 Stat. 1531.)Historical and Revision Notes

Paragraph (a) is added only to avoid repetition of the phrase “invention or discovery” and its derivatives throughout the revised title. The present statutes use the phrase “invention or discovery” and derivatives.

Paragraph (b) is noted under section 101.

Paragraphs (c) and (d) are added to avoid the use of long expressions in various parts of the revised title.

Editorial NotesAmendments

2012—Subsec. (i)(1)(B). Pub. L. 112–211 substituted “right of priority under section 119, 365(a), 365(b), 386(a), or 386(b) or to the benefit of an earlier filing date under section 120, 121, 365(c), or 386(c)” for “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)”.

2011—Subsec. (e). Pub. L. 112–29, § 3(a)(1), struck out “or inter partes reexamination under section 311” after “302”.

Subsecs. (f) to (j). Pub. L. 112–29, § 3(a)(2), added subsecs. (f) to (j).

1999—Subsec. (e). Pub. L. 106–113 added subsec. (e).

Statutory Notes and Related SubsidiariesEffective Date of 2012 Amendment

Pub. L. 112–211, title I, § 103, Dec. 18, 2012, 126 Stat. 1532, provided that:“(a)In General.—The amendments made by this title [enacting part V of this title and amending this section and sections 102, 111, 115, 120, 154, 173, 365, and 366 of this title] shall take effect on the later of—“(1) the date that is 1 year after the date of the enactment of this Act [Dec. 18, 2012]; or“(2) the date of entry into force of the treaty with respect to the United States [May 13, 2015].“(b)Applicability of Amendments.—“(1)In general.—Subject to paragraph (2), the amendments made by this title shall apply only to international design applications, international applications, and national applications filed on and after the effective date set forth in subsection (a), and patents issuing thereon.“(2)Exception.—Sections 100(i) and 102(d) of title 35, United States Code, as amended by this title, shall not apply to an application, or any patent issuing thereon, unless it is described in section 3(n)(1) of the Leahy-Smith America Invents Act [Pub. L. 112–29] (35 U.S.C. 100 note).“(c)Definitions.—For purposes of this section—“(1) the terms ‘treaty’ and ‘international design application’ have the meanings given those terms in section 381 of title 35, United States Code, as added by this title;“(2) the term ‘international application’ has the meaning given that term in section 351(c) of title 35, United States Code; and“(3) the term ‘national application’ means ‘national application’ within the meaning of chapter 38 of title 35, United States Code, as added by this title.”

Effective Date of 2011 Amendment; Savings Provisions

Pub. L. 112–29, § 3(n), Sept. 16, 2011, 125 Stat. 293, provided that:“(1)In general.—Except as otherwise provided in this section [amending this section and sections 32, 102, 103, 111, 119, 120, 134, 135, 145, 146, 154, 172, 202, 287, 291, 305, 363, 374, and 375 of this title, repealing sections 104 and 157 of this title, and enacting provisions set out as notes under sections 32, 102, and 111 of this title], the amendments made by this section shall take effect upon the expiration of the 18-month period beginning on the date of the enactment of this Act [Sept. 16, 2011], and shall apply to any application for patent, and to any patent issuing thereon, that contains or contained at any time—“(A) a claim to a claimed invention that has an effective filing date as defined in section 100(i) of title 35, United States Code, that is on or after the effective date described in this paragraph; or“(B) a specific reference under section 120, 121, or 365(c) of title 35, United States Code, to any patent or application that contains or contained at any time such a claim.“(2)Interfering patents.—The provisions of sections 102(g), 135, and 291 of title 35, United States Code, as in effect on the day before the effective date set forth in paragraph (1) of this subsection, shall apply to each claim of an application for patent, and any patent issued thereon, for which the amendments made by this section also apply, if such application or patent contains or contained at any time—“(A) a claim to an invention having an effective filing date as defined in section 100(i) of title 35, United States Code, that occurs before the effective date set forth in paragraph (1) of this subsection; or“(B) a specific reference under section 120, 121, or 365(c) of title 35, United States Code, to any patent or application that contains or contained at any time such a claim.”

Effective Date of 1999 Amendment

Amendment by Pub. L. 106–113 effective Nov. 29, 1999, and applicable to any patent issuing from an original application filed in the United States on or after that date, see section 1000(a)(9) [title IV, § 4608(a)] of Pub. L. 106–113, set out as a note under section 41 of this title.

Notes of Decisions

Cited in 443 cases (61 in the last 5 years), 1953–2026 · leading case: Cuozzo Speed Tech., LLC v. Lee, 195 L. Ed. 2d 423 (2016).

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Cuozzo Speed Tech., LLC v. Lee, 195 L. Ed. 2d 423 (2016). · cites it 4× “The Leahy-Smith America Invents Act, 35 U. S. C. §100 et seq., creates a process called “inter partes review.”

In Re Bilski, 545 F.3d 943 (Fed. Cir. 2008). · cites it 4× “Congress provided a definition of “process” in 35 U.S.C. § 100 (b): "The term ‘process' means process, art or method, and includes a new use of a known process, machine, manufacture, composition of matter, or material.”

CLS Bank Int'l v. Alice Corp. Pty. Ltd., 717 F.3d 1269 (Fed. Cir. 2013). · cites it 4× “35 U.S.C. § 100 (b). As discussed above, nonobviousness is not an issue under Section 101; neither is “invention.”

Drone Tech., Inc. v. Parrot S.A., 838 F.3d 1283 (Fed. Cir. 2016). · cites it 4× “” 35 U.S.C. § 100 (d) (2012) (emphasis added); see also H.”

Intellectual Prop. Dev., Inc. v. Tci Cablevision of California, Inc., 248 F.3d 1333 (Fed. Cir. 2001). · cites it 3× “Indeed, a transferee that receives all substantial patent rights from a transferor would never need consent from the transferor to file suit because such an assignment essentially transfers title in the patent to the transferee.”

Nat. Alternatives Int'l, Inc. v. Creative Compounds, LLC, 918 F.3d 1338 (Fed. Cir. 2019). · cites it 3× “" 35 U.S.C. § 100 (b). The Supreme Court has explained that under § 101, patent protection does not extend to the patent ineligible concepts of laws of nature, natural phenomena, and abstract ideas, which are "building blocks of human ingenuity.”

Smart Sys. Innovations, LLC v. Chicago Transit Auth., 873 F.3d 1364 (Fed. Cir. 2017). · cites it 2× “” (empha- sis added)); 35 U.S.C. § 100 (j) (“The term ‘claimed inven- tion’ means the subject matter defined by a claim in a patent or an application for a patent.”

Warner-Jenkinson Co. v. Hilton Davis Chem. Co., 520 U.S. 17 (1997). · cites it 2× “In particular, petitioner argues: (1) The doctrine of equivalents is inconsistent with the statutory requirement that a patentee specifically "claim" the invention covered by a patent, § 112; (2) the doctrine circumvents the patent reissue processdesigned to correct mistakes in…”

McRO, Inc. v. Bandai Namco Games Am. Inc., 837 F.3d 1299 (Fed. Cir. 2016). “3218 (discussing 35 U.S.C. § 100 (b)). The concern underlying the exceptions to § 101 is not tangibility, but preemption.”

Ricoh Co., Ltd. v. Quanta Comput. Inc., 550 F.3d 1325 (Fed. Cir. 2008). · cites it 2× “To the extent that Ricoh has discovered that its previously disclosed write strategy is useful in a higher linear speed range than initially recognized, Ricoh may be free to claim a method executed at this higher speed unless that method is obvious over EP '272.”

Diamond v. Diehr, 450 U.S. 175 (1981). · cites it 2× “" [6] The word "process" is defined in 35 U. S. C. § 100 (b): "The term `process' means process, art or method, and includes a new use of a known process, machine, manufacture, composition of matter, or material.”

Morrow Ex Rel. Gen. Unsecured Creditors' Liquidating Trust of at Home Corp. v. Microsoft Corp., 499 F.3d 1332 (Fed. Cir. 2007). · cites it 2× “§ 281 , and the "patentee" includes the patentee to whom the patent was issued and the "successors in title to the patentee," 35 U.S.C. § 100 (d). The "successor[] in title" is the party holding legal title to the patent.”

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— 35 U.S.C. § 100(d) — 1 case

WiAV Solutions LLC v. Motorola, Inc., 679 F. Supp. 2d 639 (E.D. Va. 2009).

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