How does the AIA treat an inventor’s own prior use compared to pre-AIA law?

This page is an FAQ based on guidance from the Manual of Patent Examining Procedure. It is provided as guidance, with links to the ground truth sources. This is information only: it is not legal advice.

The AIA treats an inventor’s own prior use differently from pre-AIA law. Under the AIA, an inventor’s own public use is subject to the same rules as third-party public uses, but with important exceptions. The MPEP explains:

“The public use provision of AIA 35 U.S.C. 102(a)(1) thus has the same substantive scope, with respect to uses by either the inventor or a third party, as public uses under pre-AIA 35 U.S.C. 102(b) by unrelated third parties or others under pre-AIA 35 U.S.C. 102(a).”

However, the AIA provides exceptions under 35 U.S.C. 102(b)(1) for inventor-originated disclosures within one year of the effective filing date.

In contrast, under pre-AIA law, an inventor’s own commercial use, even if secret, could create a bar to patentability:

“[A]n inventor’s own prior commercial use, albeit kept secret, may constitute a public use or sale under [pre-AIA 35 U.S.C.] 102(b), barring him from obtaining a patent.”

This change in the AIA provides more protection for inventors’ own uses and disclosures, as long as they file within the one-year grace period.