How does the AIA’s first-inventor-to-file system affect the interpretation of “patented” under 35 U.S.C. 102(a)(1)?

The America Invents Act (AIA) introduced the first-inventor-to-file system, which significantly impacts the interpretation of “patented” under 35 U.S.C. 102(a)(1). The MPEP notes:

“[This MPEP section] is only applicable to applications subject to examination under the first inventor to file (FITF) provisions of the AIA as set forth in 35 U.S.C. 100 (note). See MPEP § 2159 et seq. to determine whether an application is subject to examination under the FITF provisions.”

Under the AIA:

• The effective filing date of the claimed invention is crucial in determining what constitutes prior art.
• A patent is considered prior art if it was granted before the effective filing date of the claimed invention, regardless of the invention date.
• This system eliminates the previous “grace period” based on the invention date, making the filing date (or priority date) the critical factor in determining patentability.

This change emphasizes the importance of early filing and aligns U.S. patent law more closely with international practices.

To learn more:

• AIA
• first-inventor-to-file
• patent law
• effective filing date