How does the AIA change the territorial scope of 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.
The America Invents Act (AIA) significantly changed the territorial scope of prior art compared to pre-AIA law. The MPEP 2133.03(d) notes:
“This MPEP section is not applicable to applications subject to examination under the first inventor to file (FITF) provisions of the AIA as set forth in 35 U.S.C. 100 (note).”
Key changes in the AIA regarding territorial scope include:
- Removal of “in this country” limitation: The AIA eliminated the requirement that public use or sale activities occur within the U.S. to be considered prior art.
- Global prior art: Under the AIA, public use, sales, or other publicly available information anywhere in the world can be considered prior art.
- Expanded scope: This change aligns U.S. patent law more closely with international standards and expands the pool of potential prior art.
For detailed guidance on the AIA’s approach to prior art, the MPEP directs readers to:
- MPEP § 2152.02(c) through (e) for a discussion of public use and on-sale provisions under AIA 35 U.S.C. 102.
This change has significant implications for patent applicants and examiners, as it requires consideration of a broader range of prior art sources.