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QUESTION: The examiner had issued a 103 rejection based on a single prior art reference. After my counter-arguments, he now issued another 103 rejection again based on a single reference, but different from the first one. He wrote the following: In the event the determination of the status of the application as subject to AIA 35 USC102 and 103 (or as subject to pre-AIA 35 USC 102 and 103) is incorrect, any correction of the statutory basis for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status. What does that mean in plain English?

ANSWER: Depending on when your patent application was filed will dictate what laws apply – pre-AIA or AIA. The 103 rejection means that the patent office has found your patent application (specifically, your patent claims) to be obvious in view of the prior art.

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