What is the impact of AIA 35 U.S.C. 103 on the scope of prior art?

AIA 35 U.S.C. 103 has significantly expanded the scope of prior art that can be used in obviousness rejections. The MPEP 2158 explains:

“AIA 35 U.S.C. 103 differs from pre-AIA 35 U.S.C. 103(a) in that AIA 35 U.S.C. 103 determines obviousness as of the effective filing date of the claimed invention, rather than as of the time the invention was made.”

This change allows for a broader range of prior art to be considered, including:

• Public disclosures anywhere in the world
• Earlier-filed applications that are published after the effective filing date
• Certain activities that were previously excluded under pre-AIA law

These changes align with the AIA’s goal of creating a more globally harmonized patent system and may make it more challenging to establish non-obviousness in some cases.

To learn more:

• AIA
• 35 U.S.C. 103
• prior art scope
• patent examination