PATENT REFORM: Proposed Changes to Definition of Prior Art

This post is part of our continuing series discussing a US House of Representatives working draft of patent legislation by Marcus Thymian, Jennifer Swartz, and Dennis Crouch.

The legislation proposes to completely rewrite 35 U.S.C. Section 102 to change (expand) the definition of qualifying prior art. A major change is to substantially eliminate the one-year grace period except in the case where public access of the invention was disclosed (directly or indirectly) by the inventor.

Under the new Section 102, a patent would not be available if:

The claimed invention was (1)(A) patented, described in a printed publication, or otherwise known more than one year before the effective filing date of the claimed invention, (1)(B) patented, described in a printed publication, or otherwise known before the effective filing date of the claimed invention, other than through disclosures made by the inventor or by others who obtained the subject matter disclosed directly or indirectly from the inventor; or (2) the claimed invention was described in a patent issued under section 151, or in an application for patent published under section 122(b), in a case in which the application or the patent names another inventor and the application was effectively filed before the effective filing date of the claimed invention.

According to the proposed statute, an invention becomes “known” when it is “reasonably and effectively accessible” and can be “accessed and comprehended without resort to undue efforts.” The proposal would eliminate 102(c)-(g).  The need for these sections seemingly eliminated by the switch to a First-to-File system (supra).

Over the next few weeks, Marcus Thymian, Jennifer Swartz, and Dennis Crouch will discuss the various sections of the proposal in a series of posts.

• File Attachment: Draft Patent Statute (182 KB)