What is the ‘shielding effect’ in AIA 35 U.S.C. 102(b)(1)(B) and how does it work?
What is the ‘shielding effect’ in AIA 35 U.S.C. 102(b)(1)(B) and how does it work?
The ‘shielding effect’ in AIA 35 U.S.C. 102(b)(1)(B) is a powerful protection for inventors who publicly disclose their invention before filing a patent application. According to MPEP 717:
“AIA 35 U.S.C. 102(b)(1)(B) provides that a disclosure which would otherwise qualify as prior art under AIA 35 U.S.C. 102(a)(1) is not prior art if the disclosure was made one year or less before the effective filing date of the claimed invention, and if the subject matter disclosed had been previously publicly disclosed by the inventor, a joint inventor, or another who obtained the subject matter directly or indirectly from the inventor or joint inventor.”
This ‘shielding effect’ works as follows:
- An inventor publicly discloses their invention (e.g., through a publication or presentation).
- Within one year of this disclosure, the inventor files a patent application.
- Any intervening disclosures by third parties that occurred after the inventor’s initial disclosure but before the patent application filing are ‘shielded’ and cannot be used as prior art against the application.
This provision effectively creates a one-year window during which the inventor’s disclosure protects them from others’ subsequent disclosures of the same subject matter.
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