What are the exceptions to prior art under AIA 35 U.S.C. 102(b)?
AIA 35 U.S.C. 102(b) provides exceptions to what would otherwise be considered prior art under AIA 35 U.S.C. 102(a). These exceptions are divided into two categories:
- AIA 35 U.S.C. 102(b)(1): Exceptions to prior art defined in 102(a)(1)
- AIA 35 U.S.C. 102(b)(2): Exceptions to prior art defined in 102(a)(2)
The MPEP states: “AIA 35 U.S.C. 102(b) sets out exceptions to AIA 35 U.S.C. 102(a), in that prior art that otherwise would be included in AIA 35 U.S.C. 102(a) shall not be prior art if it falls within an exception under AIA 35 U.S.C. 102(b).“
For 102(b)(1), a key exception is the one-year grace period: “[a] disclosure made 1 year or less before the effective filing date of a claimed invention shall not be prior art to the claimed invention under subsection (a)(1) if—” (followed by specific conditions).
It’s important for inventors and patent attorneys to understand these exceptions as they can affect the patentability of an invention.
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