Before the America Invents Act (AIA) was enacted, the answer was a resounding "no." This was because courts held that a "printed publication" had to be "accessible to the public" (which confidential and top-secret documents were not; see Northern Telecom, Inc. v. Datapoint Corp. 908 F.2d 931, 936-37 (Fed. Cir. 1990)).
With the passage of the AIA, the statutory language has slightly changed. 35 U.S.C. 102(a) now states:
"A person shall be entitled to a patent unless--
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"
How can we interpret the clause "or otherwise available to the public"? One way to interpret "otherwise" is to substitute it with: "in some other manner." With this particular interpretation, this would imply that one or more of the preceding elements in the list also have to be available to the public. A second way to interpret the clause "otherwise" is that each element in the list has absolutely no bearing on the other elements. "It is either a square, triangle, or otherwise a circle." With this interpretation, you could replace "otherwise" with "in some manner." So the language is subject to multiple interpretations.
Although the AIA is relatively new, and there hasn't been a lot of case law on this particular point, most people would reasonably expect the traditional view will remain in effect. There is a strong public policy concern regarding a patent potentially taking away an invention that was already accessible to the public. This public policy concern is substantially muted when dealing with confidential and top secret publications, which are not available to the public as such.
With the passage of the AIA, the statutory language has slightly changed. 35 U.S.C. 102(a) now states:
"A person shall be entitled to a patent unless--
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"
How can we interpret the clause "or otherwise available to the public"? One way to interpret "otherwise" is to substitute it with: "in some other manner." With this particular interpretation, this would imply that one or more of the preceding elements in the list also have to be available to the public. A second way to interpret the clause "otherwise" is that each element in the list has absolutely no bearing on the other elements. "It is either a square, triangle, or otherwise a circle." With this interpretation, you could replace "otherwise" with "in some manner." So the language is subject to multiple interpretations.
Although the AIA is relatively new, and there hasn't been a lot of case law on this particular point, most people would reasonably expect the traditional view will remain in effect. There is a strong public policy concern regarding a patent potentially taking away an invention that was already accessible to the public. This public policy concern is substantially muted when dealing with confidential and top secret publications, which are not available to the public as such.
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