Does a PCT application need to enter the national stage in the U.S. to be prior art under AIA?
No, a PCT application does not need to enter the national stage in the United States to be considered prior art under the AIA. The MPEP clearly states:
Thus, under the AIA, WIPO publications of PCT applications that designate the United States are treated as U.S. patent application publications for prior art purposes, regardless of the international filing date, whether they are published in English, or whether the PCT international application enters the national stage in the United States.
This means that as long as the PCT application designates the United States and is published by WIPO, it can be used as prior art under AIA 35 U.S.C. 102(a)(2). This is a significant change from pre-AIA law and expands the scope of prior art that must be considered in patentability determinations.
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