What’s the difference between AIA 35 U.S.C. 102(a)(1) and 102(a)(2) regarding patents as prior art?

The main difference between AIA 35 U.S.C. 102(a)(1) and 102(a)(2) lies in the timing and nature of the patent documents considered as prior art. The MPEP notes:

“Note that a U.S. patent that issues after the effective filing date of a claimed invention and is not available as prior art against that invention under AIA 35 U.S.C. 102(a)(1) could be available as prior art under AIA 35 U.S.C. 102(a)(2).”

To break this down:

• 102(a)(1) considers patents that are publicly available before the effective filing date of the claimed invention.
• 102(a)(2) can apply to U.S. patents and published applications with earlier effective filing dates, even if they are published or issued after the effective filing date of the claimed invention.

This distinction allows for certain later-published documents to still be considered as prior art based on their earlier filing dates.

To learn more:

• AIA
• prior art
• patent law
• 102(a)(1)
• 102(a)(2)