What Is Prior Art? Navigating Section 102, Case Law, And AI

Under the America Invents Act, what qualifies as prior art is measured against a claimed invention’s effective filing date. 35 U.S.C. § 102(a)(1) encompasses inventions “patented, described in a printed publication, or in public use, on sale, or otherwise available to the public” before that date, and § 102(a)(2) adds U.S. patents and published applications that name another inventor and were effectively filed earlier. With the AIA’s shift to first-inventor-to-file, an applicant can no longer “swear behind” a reference based on an earlier invention date, making the disclosures that precede the effective filing date decisive.

For printed publications, the touchstone is public accessibility. The Federal Circuit has found even limited, unrestricted distribution sufficient: a paper presented orally at a scientific conference and distributed without restriction to as few as six attendees was publicly accessible in Massachusetts Institute of Technology v. AB Fortia (Fed. Cir. 1985), as