How does the “otherwise available to the public” provision affect internet disclosures?
This page is an FAQ based on guidance from the Manual of Patent Examining Procedure. It is provided as guidance, with links to the ground truth sources. This is information only: it is not legal advice.
The “otherwise available to the public” provision in AIA 35 U.S.C. 102(a)(1) significantly affects how internet disclosures are treated as potential prior art. According to MPEP 2152.02(e):
“[A] document electronically posted on the Internet (see, e.g., Voter Verified, Inc. v. Premier Election Solutions, Inc., 698 F.3d 1374, 104 USPQ2d 1553 (Fed. Cir. 2012), In re Lister, 583 F.3d 1307, 92 USPQ2d 1225 (Fed. Cir. 2009), SRI Int’l, Inc. v. Internet Sec. Sys., Inc., 511 F.3d 1186, 85 USPQ2d 1489 (Fed. Cir. 2008), and MPEP § 2128)”
can be considered prior art. This provision allows for a broader inclusion of internet-based disclosures as prior art, focusing on their public availability rather than their format or method of dissemination.