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Secret Prior Art

Posted Wednesday, July 14, 2010 by Jim Ruttler

When applications are filed in the U.S., they are not available for public review for at least 18 months. However, pursuant to 35 USC 102(e), these applications are considered prior art as of their filing dates and may be cited by an examiner as a basis for a rejection. This means that when one searches for prior art prior to and after filing a patent application, he or she will not discover a huge swath of prior art that exists and that may be cited by a patent examiner later during examination. That is, just because you don’t see it doesn’t mean it doesn’t exist and isn’t prior art.

A good strategy for dealing with this issue is to file at least a provisional application as soon as possible to secure an early filing date.

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