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      The Quest for More Globally Harmonized, Transparent "Prior Art"– Adoption of a Publicly Available Standard [CC]

      The Quest for More Globally Harmonized, Transparent "Prior Art"– Adoption of a Publicly Available Standard [CC]
      CLE 90 min

      The Quest for More Globally Harmonized, Transparent "Prior Art"– Adoption of a Publicly Available Standard [CC]

      The America Invents Act (AIA), enacted by Congress in 2011, was more than a decade in the making. The AIA rewrote from scratch the section of the patent statute (35 U.S.C. 102) defining "prior art." It did so by injecting into the AIA statute what the AIA's congressional sponsors characterized as an overarching "available to the public" limitation on subject matter that could qualify as prior art, explaining that this aspect of the AIA was an effort to conform U.S. law to international norms, by precluding secret, non-public disclosures from barring patent claims on prior art grounds. The Supreme Court held that the new statute failed to accomplish this objective and had instead retained all of the pre-AIA law allowing non-public, on-sale activities to constitute prior art. This webinar brings together a group of thought leaders to discuss and debate whether prior art should be defined to be fully transparent, as it is in all other industrialized countries, and confined to publicly accessible subject matter. The webinar will address two "straw proposals" containing specific amendments to the patent statute that would address these prior art "transparency" issues.

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      Closed Captioned.

      The America Invents Act (AIA), enacted by Congress in 2011, was more than a decade in the making. The AIA rewrote from scratch the section of the patent statute (35 U.S.C. 102) defining "prior art." It did so by injecting into the AIA statute what the AIA's congressional sponsors characterized as an overarching "available to the public" limitation on subject matter that could qualify as prior art, explaining that this aspect of the AIA was an effort to conform U.S. law to international norms, by precluding secret, non-public disclosures from barring claims on prior art grounds. Shortly after the enactment of the AIA, the USPTO provided guidance to inventors on the "prior art" standard set out in 102, concluding that 102 had in fact limited U.S. prior art determinations to disclosures made available to the public before the effective filing date of a claimed invention. The USPTO guidance was overturned by the Supreme Court in its Helsinndecision. In brief, the Court in Helsinn held that the new statute failed to effect any change to key aspects of the pre-AIA law on "prior art," most specifically by allowing secret, non-public, "on-sale" activities to constitute prior art. The Supreme Court's holding was grounded on the continued use in AIA 102 of the words "on sale" that had appeared in the pre-AIA 102. Thus, today, the "available to the public" limitation placed into AIA 102 has been judicially circumvented, at least with respect to secret "on sale" activities that under pre-AIA law could bar a patent under 102.

      This webinar will discuss two "straw proposals" that would address the current state of 102 law. One proposal would amend the patent statute to remove the carryover words "in public use or on sale" as they now appear in AIA 102, thus overruling Helsinn. The other proposal would address secret "on sale" activities attributable to the inventor by barring patent enforcement if such secret "on sale" activities commenced more six-years before the effective filing date of a patented invention-and the patent owner had not disclaimed, before patent issuance, any patent term that would extend more than 20 years from the date of first commercialization. This proposal would address the supposed potential for abuse arising from belatedly seeking a patent once secret commercialization of a claimed invention had commenced.

      Product Details

      Panelists

      Andrew Baluch, Gordon T Arnold, Lisa Larrimore Ouellette, Philip S Johnson

      Sponsors

      Section of Intellectual Property Law

      Product Code

      PT2403TFPOLC

      Duration

      90

      Publication Date

      3/21/2024 12:00:00 AM

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