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Provisional applications as prior art

Jim Ruttler, Patent Attorney

Posted Thursday, November 5, 2009 by Jim Ruttler

The federal circuit is considering whether a non-provisional application claiming the benefit of a provisional application is prior art as of the filing date of the non-provisional application or the provisional application. This is a new question, because the relevant statute, 35 USC 102(e) is silent in this regard. It is the case that parent international and other non-provisional applications are prior art as of the filing date of these applications. It is also the case that parent foreign applications are not prior art as of their filing dates.

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