How does the treatment of WIPO published applications differ under AIA compared to pre-AIA?

The treatment of WIPO published applications as prior art differs significantly under the AIA compared to pre-AIA law:

• Under AIA: All WIPO published applications designating the U.S. are treated as prior art, regardless of filing date, language, or national stage entry.
• Under pre-AIA: WIPO published applications had more restrictions to be considered prior art.

The MPEP states: This differs from the treatment of a WIPO published application under pre-AIA 35 U.S.C. 102(e), where a WIPO published application is treated as a U.S. patent application publication only if the PCT application was filed on or after November 29, 2000, designated the United States, and is published under PCT Article 21(2) in the English language.

This change significantly expands the scope of WIPO published applications that can be used as prior art under the AIA, potentially affecting patentability determinations.

To learn more:

• AIA
• pre-AIA
• WIPO publications
• prior art
• PCT applications