As per news reports the new USPTO guidance restricts use of Applicant Admitted Prior Art (AAPA) in IPRs. It will no longer qualify as standalone prior art but can be combined with other references.
If you’re in patents, you’ve likely heard of “Applicant Admitted Prior Art (AAPA)”. This refers to statements in a “patent specification”, where the applicant admits something is already “known” or “conventional.” AAPA is considered risky, mainly because, those statements can later be used against the patent, even if no external prior art is cited. This can be explained as, when you write “It is well known that lithium batteries are used in …”, usage of “well known” can give challengers free prior art ammunition.
On August 22, 2025, USPTO issued a new guidance memo that significantly limits the types of prior art that can be used in IPR proceedings before the Patent Trial and Appeal Board (PTAB). Effective September 1, 2025, AAPA and general knowledge can no longer be used to establish claim elements or supply missing limitations, even when combined with other prior art. This policy supersedes previous USPTO guidance and narrows interpretations by the Federal Circuit in Qualcomm Inc. V. Apple Inc.
Earlier the disputes between Qualcomm and Apple led to the court had holding that AAPA could be used as part of an obviousness challenge in IPRs. This alarmed applicants because casual wording in the background section could tank a patent years later. As per the new USPTO guidance (Aug 2025), The Office has now restricted AAPA’s use in IPRs. It clarified that:
AAPA cannot serve as standalone prior art for invalidating claims.
It may only be used to interpret claim scope or in combination with other prior art references.
Patent Drafting Tips:
This is a big relief for applicants, but smart drafting remains the best shield. While drafting patent specification, it is important to:
Avoid saying “well known” or “conventional.”
Cite published patents/literature instead of making admissions.
A disclaimer can be added that the discussion of prior art should not be construed as an admission that it is prior art under applicable law.
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