What can a rejection under 35 USC 102(e) or post AIA 102(a)(2) not rely on?

A rejection under 35 USC 102(e) or post-AIA 102(a)(2) cannot rely on canceled matter that is not published in the issued patent. This is because these sections pertain to the novelty and non-obviousness of a claimed invention in light of prior art.

Under 35 USC 102(e), a patent applicant cannot be rejected based on information that is not sufficiently published or made available to the public. This means that any matter that has been canceled, and thus doesn't appear in the issued patent, does not contribute to the state of the art and cannot be cited as a basis for rejection.

In contrast, published matters related to the claim, evidence from foreign patents, and previously accepted claims can all serve as relevant prior art, as they provide information that is publicly accessible and may demonstrate that the claimed invention lacks novelty or is obvious in light of existing technology or inventions.

Therefore, the inability of a rejection to rely on canceled matter not published in the issued patent is grounded in the principle that only publicly available information can serve as a basis for determining the novelty of a patent claim.