Pre-AIA 35 U.S.C. § 102

Pre-AIA 35 U.S.C. § 102 is the version of the U.S. patent novelty statute that governed patentability before the America Invents Act (AIA) took effect on March 16, 2013. It operated on a first-to-invent system: priority between competing claimants to the same invention was resolved by actual date of invention (conception plus reduction to practice, with diligence), not by who filed first, and disputes were resolved through an interference proceeding before the USPTO. It had seven prior-art/loss-of-right subsections, (a) through (g), several of which (abandonment, premature foreign patenting, derivation, and prior invention by another) were eliminated outright when the AIA replaced it with the current first-inventor-to-file version of § 102. Pre-AIA § 102 is not purely historical: under the AIA's transitional rule, any U.S. application that contains or ever contained a claim with an effective filing date before March 16, 2013 is examined in its entirety under pre-AIA §§ 102 and 103, so it still actively governs a real population of applications and issued patents today.

ByCASRAI Editorial Board

· Last updated 18 Jul 2026

Worked examples

Is an instance

A university lab's faculty inventor conceived an invention in January 2011, kept a witnessed lab notebook, and reduced it to practice (built and tested a working prototype) in June 2011. A rival inventor filed a patent application in March 2011 claiming the same invention but hadn't conceived it until February 2011. Under pre-AIA first-to-invent rules, the university inventor could still win priority in an interference proceeding by proving the earlier conception date plus reasonable diligence toward reduction to practice -- something that would be irrelevant under the current first-inventor-to-file system, where the earlier filing date alone would control.

Is an instance

A TTO is prosecuting a continuation application filed in 2016 that claims priority back through a chain of applications to an original non-provisional filed in November 2012. Because that original filing predates March 16, 2013, and the continuation still contains at least one claim tracing to that pre-AIA effective filing date, the USPTO examines the entire continuation -- not just the older claims -- under pre-AIA §§ 102 and 103, including the possibility of a pre-AIA 102(g) interference-style priority challenge, even though the application itself was filed years after the AIA transition.

Looks similar, but isn't

Not an instance

A patent application filed in 2015 with no claim tracing back to any pre-March-16-2013 priority document is examined entirely under the current AIA first-inventor-to-file version of § 102 -- pre-AIA § 102 has no application to it, regardless of when the underlying research was actually conducted.

Pre-AIA 35 U.S.C. § 102 is the version of the U.S. patent novelty statute that applied before the Leahy-Smith America Invents Act (AIA) took effect on March 16, 2013. It is the legal basis of the first-to-invent system that the AIA replaced with the current first-inventor-to-file system. For a technology transfer office (TTO), the distinction is not academic: it determines which set of rules — and which procedural mechanisms, like interference proceedings — apply to a given application or issued patent, and a meaningful population of older filings and their descendants (continuations, divisionals) are still governed by it today. See CASRAI’s companion guide on the current, post-AIA version at 35 U.S.C. § 102: Patent Novelty and Invention Disclosure Timing.

The seven subsections of pre-AIA § 102

Pre-AIA § 102 defined prior art and loss-of-right conditions across subsections (a) through (g):

(a) the invention was known or used by others in the U.S., or patented or described in a printed publication anywhere, before the applicant’s date of invention;
(b) the invention was patented or described in a printed publication anywhere, or in public use or on sale in the U.S., more than one year before the applicant’s U.S. filing date (the statutory bar);
(c) the applicant abandoned the invention;
(d) the applicant filed a foreign patent application more than 12 months before the U.S. filing and the foreign patent issued before the U.S. filing (premature foreign patenting);
(e) the invention was described in an earlier-filed U.S. patent application by another inventor that later published or issued;
(f) the applicant did not himself invent the claimed subject matter (derivation);
(g) another party made the invention in the U.S. before the applicant and had not abandoned, suppressed, or concealed it — the basis for interference practice.

The AIA eliminated subsections (c), (d), (f), and (g) outright as novelty provisions (derivation survives in a different form, through AIA derivation proceedings) and rewrote (a), (b), and (e) into the current AIA § 102(a)(1)/(a)(2) framework, which runs from the effective filing date rather than the date of invention and removed the U.S.-only geographic limitation on public use and sale. Source: USPTO Manual of Patent Examining Procedure (MPEP) § 2151, Overview of the Changes to 35 U.S.C. 102 and 103 in the AIA.

First-to-invent priority: conception, reduction to practice, and diligence

Under pre-AIA § 102(g), priority between two parties claiming substantially the same invention turned on who actually invented it first — not who filed first. Three concepts governed that determination:

Conception — the mental formation of a complete and operative idea of the invention, definite enough that a person skilled in the art could reduce it to practice without further inventive work.
Reduction to practice — either actual reduction to practice (building and testing a working embodiment) or constructive reduction to practice (filing a patent application describing the invention).
Diligence — a party who conceived first but reduced to practice second (a first-to-conceive, last-to-reduce-to-practice party) could still prevail by showing reasonable diligence in working toward reduction to practice from a time just before the other party’s conception through to their own reduction to practice.

These questions were resolved in an interference proceeding, an inter partes proceeding before the USPTO between two or more pending applications, or a pending application and an unexpired patent, naming different inventors of substantially overlapping subject matter. Interference practice made contemporaneous, well-documented lab notebooks (dated, witnessed, describing conception and reduction-to-practice events) a genuinely load-bearing piece of institutional record-keeping for research organizations — a documentation practice that predates, and in some TTOs still outlives, the AIA transition. Source: USPTO MPEP § 2138.

Why pre-AIA § 102 still matters

Pre-AIA § 102 is not purely historical. Under the AIA’s transitional rule, the AIA version of § 102 applies only to an application that has never, at any point in its history, contained a claim with an effective filing date before March 16, 2013. If a U.S. application — including a continuation, divisional, or continuation-in-part descended from an older parent — contains or ever contained even one claim tracing back to a pre-March-16-2013 effective filing date, the entire application is examined under pre-AIA §§ 102 and 103, including the possibility of a pre-AIA 102(g)-style interference. Source: USPTO MPEP § 2151.

Practically, this means a TTO handling a mature patent family with roots before 2013 — common for long-running research programs, licensed-out technology with ongoing continuation filings, or patents now in litigation — may still need to reason in first-to-invent terms: checking conception and reduction-to-practice dates in inventor records, not just filing dates, and understanding that an interference (or its residual mechanisms), rather than an AIA derivation proceeding, is the applicable dispute-resolution path.

Pre-AIA vs. AIA grace period: not the same mechanism

Pre-AIA § 102(b) imposed a strict one-year statutory bar: if the invention was in public use or on sale in the U.S. more than one year before the U.S. filing date, the application was barred — regardless of whether that public use or sale was the inventor’s own or an independent third party’s activity. The AIA’s grace period at § 102(b)(1)/(b)(2) works differently: it exempts disclosures made by the inventor (or obtained from the inventor) within the year before the effective filing date from counting as prior art at all under § 102(a)(1)/(a)(2), rather than merely tolerating any use or sale within a fixed pre-filing window regardless of source. The AIA version is also not limited to U.S. activity — public use, sale, or availability anywhere in the world can now create prior art. Researchers and TTOs relying on the current grace period should not assume it behaves like the older statutory bar; see the post-AIA guide linked above for how the current grace period actually works, including the Helsinn v. Teva Supreme Court ruling on confidential sales.

Related terms

35 U.S.C. § 102: Patent Novelty and Invention Disclosure Timing (the current, post-AIA version)
Utility Patent
Patent Prosecution
Provisional Patent Applications: USPTO Requirements, Cost, and the 12-Month Deadline
Cost of Filing a Patent

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