How does the AIA affect the “by others” requirement in prior art?
The America Invents Act (AIA) eliminated the “by others” requirement that existed in pre-AIA 35 U.S.C. 102(a). This change significantly expands the scope of potential prior art under AIA 35 U.S.C. 102(a)(1).
As stated in the MPEP:
“A key difference between pre-AIA 35 U.S.C. 102(a) and AIA 35 U.S.C. 102(a)(1) is the requirement in pre-AIA 35 U.S.C. 102(a) that the prior art relied on was ‘by others.’ Under AIA 35 U.S.C. 102(a)(1), there is no requirement that the prior art relied upon be by others.”
Key implications of this change include:
- An inventor’s own public disclosures can now be prior art against their later patent application
- Disclosures by joint inventors or those who obtained the subject matter from the inventor can be prior art
- The focus is on the public availability of the disclosure, not its source
However, the AIA also introduced exceptions under 35 U.S.C. 102(b)(1) for certain disclosures made one year or less before the effective filing date. These exceptions can remove some inventor-originated disclosures from the prior art.
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