How does the AIA 35 U.S.C. 102(b)(2)(A) exception differ from pre-AIA patent law?
The AIA 35 U.S.C. 102(b)(2)(A) exception is part of the America Invents Act (AIA), which made significant changes to U.S. patent law. This exception is specifically applicable to applications subject to the first inventor to file (FITF) provisions of the AIA. The MPEP notes:
[Editor Note: 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, and MPEP § 2131 – MPEP § 2138 for examination of applications subject to pre-AIA 35 U.S.C. 102.]
The key differences include:
- The AIA exception applies specifically to disclosures in U.S. patent documents by another who obtained the subject matter from the inventor.
- There is no grace period limitation for this exception under AIA.
- The exception is part of a broader shift from a “first-to-invent” to a “first-inventor-to-file” system.
For applications subject to pre-AIA law, different rules apply, and these are covered in other sections of the MPEP (§ 2131 – § 2138).
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