I have heard some people say that there is no longer a 1 year grace period under the America Invents Act. The currently enacted 35 USC Section 102 states in relevant part:
“35 USC § 102. Conditions for patentability; novelty
(a) NOVELTY; PRIOR ART.—A person shall be entitled to a patent unless—
(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention; or
(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or aFILING DATE OF THE CLAIMED INVENTION.—A disclosure made 1 year or less before the effective filing date of a claimed invention shall not be prior art to the claimed invention under subsection (a)(1) if—
(A) the disclosure was made by the inventor or joint inventor or by another who obtained the subject matter disclosed directly or indirectly from the inventor or a joint inventor; or
(B) the subject matter disclosed had, before such disclosure, been publicly disclosed by the inventor or a joint inventor or another who obtained the subject matter disclosed directly or indirectly from the inventor or a joint inventor…”pplication, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
(b) EXCEPTIONS.—
(1) DISCLOSURES MADE 1 YEAR OR LESS BEFORE THE EFFECTIVE FILING DATE OF THE CLAIMED INVENTION.—A disclosure made 1 year or less before the effective filing date of a claimed invention shall not be prior art to the claimed invention under subsection (a)(1) if—
(A) the disclosure was made by the inventor or joint inventor or by another who obtained the subject matter disclosed directly or indirectly from the inventor or a joint inventor; or
(B) the subject matter disclosed had, before such disclosure, been publicly disclosed by the inventor or a joint inventor or another who obtained the subject matter disclosed directly or indirectly from the inventor or a joint inventor…”
In fact, if “disclosure”, as some have suggested, doesn’t mean “on sale” or “public use”, then it also should not mean the other prior art listed in 102(a)(1), namely: “described in a printed publication”, or in “public use”, or “otherwise available to the public”. And if that is the case, what is left for “disclosure” to mean? Almost nothing. Thus, it is my view that there is still a 1 year grace period for when an inventor publicly discloses his invention, or offers his invention for sale, or otherwise makes a public disclosure of his invention. Of course, there has been no cases directly on point since the AIA was enacted in 2011.