How does AIA 35 U.S.C. 103 define prior art for obviousness determinations?

AIA 35 U.S.C. 103 relies on AIA 35 U.S.C. 102(a) to define prior art for both novelty and obviousness determinations. The MPEP states:

“AIA 35 U.S.C. 102(a) defines what is prior art both for purposes of novelty under AIA 35 U.S.C. 102 as well as for purposes of obviousness under AIA 35 U.S.C. 103.“

This means that if a document qualifies as prior art under AIA 35 U.S.C. 102(a)(1) or (a)(2) and is not subject to an exception under AIA 35 U.S.C. 102(b), it can be used in an obviousness rejection under AIA 35 U.S.C. 103. However, it’s important to note that while a disclosure must enable those skilled in the art to make the invention to anticipate under 35 U.S.C. 102, a non-enabling disclosure can still be used as prior art for obviousness determinations under 35 U.S.C. 103.

To learn more:

• AIA
• 35 U.S.C. 103
• 35 U.S.C. 102
• prior art
• obviousness
• novelty