Ways To Convert A Pre-AIA Patent Into An AIA Patent

Law360, New York (January 30, 2015, 10:16 AM EST) -- Under the America Invents Act, the definition of prior art is generally broader compared to the pre-AIA rules (i.e., first-to-invent).[1] However, some pre-AIA prior art does not qualify as AIA prior art. For example, the USPTO's interpretation of AIA 35 U.S.C. § 102(a)(1) does not treat secret sales as prior art.[2] Also, AIA 35 U.S.C. § 102(c) can be used to disqualify both anticipatory and obviousness references, whereas pre-AIA 35 U.S.C. § 103(c) may only disqualify obviousness references.[3] Finally, the USPTO's interpretation of AIA 35 U.S.C. § 102(a)(1) does not preserve the Metallizing Engineering forfeiture doctrine.[4] Under Metallizing Engineering, a secret commercial use more than one year before applying for a patent could prevent the prior user from obtaining patent rights.[5]...

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