Prior to the America Invents Act of 2011 (AIA), prior art were either (1) prior in time to the invention and thus anticipated the invention (e.g., 102(a), (e), and (g)); or (2) more than one-year prior to the application filing date and thus raised a statutory bar (102(b)). Within this schema, the pre-AIA Section 102 included the title of “Novelty and Loss of Right” where novelty refers to anticipation and loss of right refers to the statutory bar.
The AIA totally rewrote Section 102 and eliminated the notion of anticipating the invention and also altered the notion of the statutory bar. The new rules focus instead on the effective filing date of the invention create what looks a lot like the statutory bar of 102(b) (except for automatic one-year grace period). The rule is not about absolute novelty in terms of invention-date (as that term has always been used in the US) but instead about filing of an application before prior art emerges. Although this seems to fit within what we used to call the statutory bar, Congress included “novelty” within the title of the new Section 102(a) and left-out loss of rights.
Although we understand how the statute is supposed to work, we’re left with the small matter of crystalizing the name for prior art that qualifies under post-AIA 102. It doesn’t necessarily anticipate the invention – and congress appeared intent on moving away from the passive loss-of-rights designation. We could spell-out “qualifies as prior art under Section 102”, but that’s not the kind of identifier that sticks. I propose using the middle ground of “anticipating the patent” or “anticipating the application,” depending upon whether a patent has yet issued. This proposal seems to fit within Congressional intent but also implicitly recognizes that we’re no longer concerned with the invention date but instead the key patent date (i.e., effective filing date). This approach seems to also roughly fits with the language used by European Courts that have long focused on filing dates. Overall, this is not a big deal, but it may end up being important to get the words right.