¿Does Secret Prior Art Apply to the Obviousness Analysis?

by Dennis Crouch It is not clear from ,u reading the AIA revisions that “secret prior art” (102(b)(2) prior art) continues to qualify as prior art for the obviousness analysis.  The obviousness provision (Section 103) refers to prior art in the context of what would be known “before the effective filing date of the claimed invention to a person of ordinary skill in the art.”  And, almost by definition, information only available in a secret patent filing at the PTO would not be known to this mythic POSITA.  In addition, the AIA indicates that one purpose of the amendments is to bring US law in line with that of other nations [who do not rely upon secret prior art for the obviousness analysis.] Despite these argument, I suspect that the Federal Circuit will continue to push to maintain the old rule since there is not clear textual or congressional indications of an intent to change the tradition. Post-AIA patent…

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