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) focuses on the novelty of the claimed invention and requires that the reference relied upon must be a published document that provides a clear disclosure of the claimed invention. The purpose of these sections is to establish prior art based on what has been publicly disclosed, which directly affects an assessment of the novelty of a later claim.

Regarding the cancellation of matter, when an application is published, it must address all claims within it, regardless of whether claims are subsequently canceled. Canceled claims do not contribute to a prior art rejection under these sections as they cannot be cited if they were not published when the examination takes place. A rejection cannot rely on canceled matter that has not been published because it does not serve as effective prior art.

Consequently, published matters (A), evidence from foreign patents (C), and previously accepted claims (D) can all be valid points of reference under the respective sections, either serving to establish prior art or being inherently referenced in a way that they do not rely on claims that were canceled and unpublished. Canceled matter that is not published in the issued patent is an essential factor, making it correct that this cannot be the basis for a