"by others" 和 "by another" 都應該解釋成 "by a different inventive entity"

"by others" 和 "by another" 都應該解釋成 "by a different inventive entity"

不過，這個問題我也困擾很久，不太明白為啥法條上要用兩個不同的字，一般而言，如法條、判決等法律文件中，不同的用字要用不同的方式解釋，而這兩個字卻應該是要用相同的方式解釋。




102(a) the invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for patent;

102(e) the invention was described in - (1) an application for patent, published under section 122(b), by another filed in the United States before the invention by the applicant for patent or (2) a patent granted on an application for patent by another filed in the United States before the invention by the applicant for patent, except that an international application filed under the treaty defined in section 351(a) shall have the effects for the purposes of this subsection of an application filed in the United States only if the international application designated the United States and was published under Article 21(2) of such treaty in the English language;

MPEP 2132 (III)
III. "BY OTHERS"
"Others" Means Any Combination of Authors or Inventors Different Than the Inventive Entity
The term "others" in 35 U.S.C. 102(a) refers to any entity which is different from the inventive entity. The entity need only differ by one person to be "by others." This holds true for all types of references eligible as prior art under 35 U.S.C. 102(a) including publications as well as public knowledge and use. Any other interpretation of 35 U.S.C. 102(a) "would negate the one year [grace] period afforded under § 102(b)." In re Katz, 687 F.2d 450, 215 USPQ 14 (CCPA 1982).

MPEP 2136.04
IF THERE IS ANY DIFFERENCE IN THE INVENTIVE ENTITY, THE REFERENCE IS "BY ANOTHER"
"Another" means other than applicants, In re Land, 368 F.2d 866, 151 USPQ 621 (CCPA 1966), in other words, a different inventive entity. The inventive entity is different if not all inventors are the same. The fact that the application and reference have one or more inventors in common is immaterial. Ex parte DesOrmeaux, 25 USPQ2d 2040 (Bd. Pat. App. & Inter. 1992) (The examiner made a 35 U.S.C. 102(e) rejection based on an issued U.S. patent to three inventors. The rejected application was a continuation-in-part of the issued parent with an extra inventor. The Board found that the patent was "by another" and thus could be used in a 35 U.S.C. 102(e)/103 rejection of the application.).

http://www.patent-tutorial.net/content/forum/2771
Froggy
102(a)有強調public known or used，因此需要有複數的others。102(e)強調的是有一個他人先申請，所以只要another。雖然法條上如此定義，但是申請實務上，應該是一樣的，所以MPEP對another與others的解讀，應該是完全相同。