How does AIA 35 U.S.C. 103 treat commonly owned prior art?

AIA 35 U.S.C. 103 has changed the treatment of commonly owned prior art in obviousness determinations. The MPEP 2158 states:

“The AIA eliminated the pre-AIA 35 U.S.C. 103(c) safe harbor for subject matter commonly owned or subject to an obligation of assignment to the same person at the time the claimed invention was made.”

Instead, AIA introduced a new prior art exception under 35 U.S.C. 102(b)(2)(C) for commonly owned disclosures or those subject to an obligation of assignment. This exception applies to potential prior art under AIA 35 U.S.C. 102(a)(2) and can be used to disqualify certain prior art from use in obviousness rejections under AIA 35 U.S.C. 103.

To learn more:

• AIA
• 35 U.S.C. 103
• commonly owned prior art
• patent examination