How does the public use in a 102(a) rejection differ from that in a 102(b) rejection?

The reasoning behind the acceptance of the first choice lies in the fundamental differences in how public use is treated under 102(a) and 102(b) rejections.

Under 102(a), a claim can be rejected based on any public knowledge or use that may exist before the filing date of the application. This means that if the invention was known or used by others in any capacity prior to the filing date—even if that knowledge didn’t arise from actual use of the invention—it can contribute to a rejection under 102(a). This highlights a broader scope, where the mere availability of the invention to the public, regardless of whether it was actively used or merely known, is sufficient for consideration.

In contrast, 102(b) specifically addresses public use and focuses on the actual use of the invention in public. For a rejection under 102(b), it is necessary that the invention has been actively used publicly, not just known. Thus, the threshold for claiming public use is higher in this context, as it mandates demonstrable activities of using the invention rather than just its existence or knowledge by the public.

This distinction clarifies that 102(a) has a wider net for capturing prior art, including general public knowledge, whereas 102(b) nar