How has the AIA changed the definition of prior art compared to pre-AIA law?

The America Invents Act (AIA) introduced several significant changes to the definition of prior art compared to pre-AIA law:

1. Effective filing date: The MPEP states, “the availability of a U.S. patent document as prior art to a claimed invention is measured from the effective filing date of the claimed invention as defined in 35 U.S.C. 100(i), which takes into account both foreign priority and domestic benefit dates.” This differs from pre-AIA law, which used different dates for measuring prior art availability.
2. Global view of prior art: The AIA adopts a global perspective on prior art. As the MPEP notes, “the AIA adopts a global view of prior art disclosures and thus does not require that a public use or sale activity be “in this country” to be a prior art activity.“
3. New catch-all category: The AIA added a new category of prior art: “otherwise available to the public” which broadens the scope of potential prior art.
4. First-inventor-to-file system: While not explicitly stated in this MPEP section, the AIA’s shift to a first-inventor-to-file system fundamentally changes how prior art is determined.

These changes have significant implications for patent applicants and examiners in determining the scope of prior art and assessing patentability.

To learn more:

• AIA
• pre-AIA
• prior art changes
• effective filing date
• global prior art