What types of prior art are considered under AIA 35 U.S.C. 102(a)(1)?
AIA 35 U.S.C. 102(a)(1) considers the following types of prior art: Prior patenting of the claimed invention Descriptions of the claimed invention in a printed publication Public use of the claimed invention Placing the claimed invention on sale Otherwise making the claimed invention available to the public As stated in the MPEP: “Prior art documents…
Read MoreHow does AIA 35 U.S.C. 102(a)(1) treat secret commercial use or sale?
Under AIA 35 U.S.C. 102(a)(1), secret commercial use or sale can still qualify as prior art, similar to pre-AIA law. The Supreme Court clarified this in the Helsinn Healthcare S.A. v. Teva Pharmaceuticals USA, Inc. case. As stated in the MPEP: “In Helsinn Healthcare S.A. v. Teva Pharmaceuticals USA, Inc., 139 S.Ct. 628, 129 USPQ2d…
Read MoreWhat is the difference between “described in a printed publication” under AIA and pre-AIA law?
The interpretation of “described in a printed publication” remains largely the same under AIA 35 U.S.C. 102(a)(1) as it was under pre-AIA 35 U.S.C. 102. The key requirements for anticipation by a printed publication are: The reference must disclose all elements of the claimed invention The elements must be arranged as in the claim The…
Read MoreWhat is considered “otherwise available to the public” under AIA 35 U.S.C. 102(a)(1)?
Under AIA 35 U.S.C. 102(a)(1), “otherwise available to the public” is a catch-all provision that encompasses disclosures made available to the public by any means. The MPEP 2152.02(e) states: “The catch-all provision of AIA 35 U.S.C. 102(a)(1), ‘otherwise available to the public,’ indicates that the statute does not limit prior art to the enumerated categories…
Read MoreHow does the AIA define “on sale” for prior art purposes?
The AIA maintains the “on sale” provision as a category of prior art under 35 U.S.C. 102(a)(1). According to MPEP 2152.02(d): “The “on sale” provision of AIA 35 U.S.C. 102(a)(1) is triggered by a sale or offer for sale of the claimed invention. The phrase “on sale” in AIA 35 U.S.C. 102(a)(1) is treated as…
Read MoreHow does the AIA treat “on sale” activities as prior art?
The AIA’s treatment of “on sale” activities as prior art under 35 U.S.C. 102(a)(1) is similar to pre-AIA law, but with some important changes. The MPEP provides guidance on this topic: “The phrase ‘on sale’ in AIA 35 U.S.C. 102(a)(1) is treated as having the same meaning as ‘on sale’ in pre-AIA 35 U.S.C. 102(b).”…
Read MoreHow does the AIA change the geographic limitations on prior art?
The America Invents Act (AIA) removed geographic limitations on prior art that existed under pre-AIA law. Specifically: Public use and on sale activities are no longer limited to those occurring “in this country” Prior art is now considered regardless of where in the world it occurs As stated in the MPEP regarding public use: “Under…
Read MoreHow does the AIA affect the “by others” requirement in prior art?
The America Invents Act (AIA) eliminated the “by others” requirement that existed in pre-AIA 35 U.S.C. 102(a). This change significantly expands the scope of potential prior art under AIA 35 U.S.C. 102(a)(1). As stated in the MPEP: “A key difference between pre-AIA 35 U.S.C. 102(a) and AIA 35 U.S.C. 102(a)(1) is the requirement in pre-AIA…
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