How does the AIA change the treatment of prior art compared to pre-AIA law?

The AIA significantly changes how prior art is treated compared to pre-AIA law:

1. Focus on effective filing date: AIA 35 U.S.C. 102(a)(1) and (a)(2) refer to activities occurring “before the effective filing date of the claimed invention” rather than the invention date.
2. Elimination of swearing behind: The MPEP states, As a result, it is no longer possible to antedate or “swear behind” certain prior art disclosures by making a showing under 37 CFR 1.131 that the inventor invented the claimed subject matter prior to the effective date of the prior art disclosure.
3. Grace period calculation: The one-year grace period under AIA is measured from the filing date of any U.S. or foreign application to which the patent or application is entitled to benefit or priority, whereas pre-AIA only considered the earliest U.S. filing date.

These changes shift the focus from the invention date to the effective filing date, impacting how prior art is evaluated and applied in patent examination.

To learn more:

• AIA
• pre-AIA
• prior art
• effective filing date
• grace period