What is the difference between “described in a printed publication” under AIA and 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 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 disclosure must enable a person of ordinary skill to make the invention without undue experimentation
The MPEP states:
“The Office does not view the AIA as changing the extent to which a claimed invention must be described for a prior art document to anticipate the claimed invention under 35 U.S.C. 102.”
However, there are some important distinctions:
- Under AIA, there is no geographic limitation on where the publication occurs
- The AIA eliminated the “by others” requirement, so an inventor’s own publications can be prior art
- The AIA introduced exceptions under 102(b) for certain disclosures made 1 year or less before the effective filing date
Understanding these nuances is crucial for both patent applicants and examiners when considering printed publications as prior art.