What is the significance of pre-AIA 35 U.S.C. 102(b) in determining prior art?

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.

Pre-AIA 35 U.S.C. 102(b) is significant because it creates a statutory bar to obtaining a patent. According to the MPEP, If the publication or issue date of the reference is more than 1 year prior to the effective filing date of the claimed invention (MPEP § 2139.01), the reference qualifies as prior art under pre-AIA 35 U.S.C. 102(b). This means that any public disclosure, such as a publication, patent, public use, or sale that occurred more than one year before the effective filing date of the claimed invention can prevent the issuance of a patent.

It’s important to note that there’s a grace period provision: Publications, patents, public uses and sales, however, will not bar a patent if the 1-year grace period otherwise ends on a Saturday, Sunday, or federal holiday and the application’s U.S. filing date is the next succeeding business day.