Information kept secret, for instance, as a trade secret, is not usually prior art, provided that employees and others with access to the information are under a non-disclosure obligation.With such an obligation, the information is typically not regarded as prior art.As a special exception, earlier-filed and unpublished patent applications do qualify as prior art as of their filing date in certain circumstances.
However, that approach necessarily ignores ex parte prosecution.
Prior studies have considered the use of inter partes interference proceedings.
The level of reliance on inventorship rights is important because it informs the longstanding policy debate over whether the US should conform to a first-to-file system as well as for patent applicant strategy.
AIA § 102(b)(1)(B) provides a grace period against third-party disclosures, known as the "grace period shielding (or intervening) disclosure" exception. Accordingly, in order to invoke the "grace period shielding disclosure" exception, applicants will have to show not only that that the inventor(s) are the inventor(s) of the subject matter of the earlier disclosure, but also satisfactorily establish the date and content of the earlier disclosure.
An earlier inventor or noninventor disclosure can shield a later-filed application from an intervening, third-party disclosure using this exception. With regard to noninventor "shielding" disclosure, applicants have to further show that the inventor(s) communicated the invention to another who disclosed it.
is constituted by all information that has been made available to the public in any form before a given date that might be relevant to a patent's claims of originality.