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The New America Invents Act - "Prior Art" Redefined

The New America Invents Act - “Prior Art” Redefined

On September 16, 2011 President Barack Obama signed into law the Leahy-Smith America Invents Act. This new act makes several changes to procedures for an applicant as well as changes in the application process. The changes began to be implemented on September 16, 2011 with the final rules going into effect on March 19, 2013. One such change is redefining prior art.

"Prior Art" Redefined - One Year Grace Period

Prior art was redefined to give clarity. It used to mean all information disclosed to the public in any form about an invention before a given date, including publication and demonstration of the invention, as an absolute bar to patentability. The new law allows the inventor(s) to have an up to a one-year personal grace period before the filing date if there has not been public use. The Grace period exception uses the term "disclosure" and states that such a "disclosure" is not prior art if it satisfies certain conditions. A disclosure is any public distribution of information about an invention, by print, demonstrations, or other means. Disclosure does allow for typists, clerks, and similar personnel who assist with an application. There is a duty of disclosure when filing a patent application of any prior known patents, sales, or public disclosures. There is a duty of candor and good faith when dealing with the Office. A declaration is submitted with the application stating any disclosures and the Office assumes the statements that are made in the declaration are made truthfully.

Prior art means the invention was described in a printed publication, or in public use, or public sale, or otherwise available to the public before the effective filing date of the claimed invention. The new rule allows that private sales and private disclosures are permissible. The reason behind the grace period is to allow the inventor to look for investors and raise capital to produce the invention. They make the invention and then can show it to see if it is even feasible to produce.

If you have a idea and want to see if you can patent it, the best place to start is by contacting a patent attorney to discuss the patent process. If you have any questions about this article please send Patent Attorney George Leone an email.

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