How does AIA treat secret prior art in granted patents?

How does AIA treat secret prior art in granted patents?

The America Invents Act (AIA) has changed the treatment of secret prior art in granted patents. According to MPEP 2152.02(a):

“This results in the patented file contents and prosecution history also being available as prior art as of the date of patent grant.”

This means that:

• Any previously confidential information in the patent file becomes prior art upon grant.
• The entire prosecution history, including previously non-public office actions and responses, is considered prior art.
• Inventors can no longer rely on keeping certain aspects of their invention secret during prosecution to prevent them from becoming prior art.

This change aligns with the AIA’s goal of increasing transparency and expanding the pool of available prior art for patent examination and litigation purposes.

To learn more:

• AIA
• secret prior art
• granted patents
• prosecution history
• file contents