What is the difference between pre-AIA and AIA treatment of patent prior art?

What is the difference between pre-AIA and AIA treatment of patent prior art?

The America Invents Act (AIA) introduced significant changes to how patent prior art is treated compared to the pre-AIA system. The MPEP 2152.02(a) highlights a key difference:

“The AIA draws no distinction between patents and published patent applications as prior art.”

This change has several important implications:

• Pre-AIA: There were different rules for patents and published applications as prior art.
• AIA: Patents and published applications are treated equally as prior art.
• Pre-AIA: Secret prior art in granted patents had limited prior art effect.
• AIA: All content of a granted patent, including previously confidential information, becomes prior art upon grant.
• Pre-AIA: The effective date of a U.S. patent as prior art could be its foreign priority date under certain conditions.
• AIA: The effective date of a U.S. patent as prior art is its earliest effective filing date, including foreign priority date if applicable.

These changes simplify the prior art analysis and expand the scope of available prior art under the AIA system.

To learn more:

• AIA
• pre-AIA
• patent prior art
• published applications
• effective filing date