Can canceled portions of a patent application be used as prior art under pre-AIA 35 U.S.C. 102(e)?
A
Can canceled portions of a patent application be used as prior art under pre-AIA 35 U.S.C. 102(e)?
No, canceled portions of a patent application cannot be used as prior art under pre-AIA 35 U.S.C. 102(e). The MPEP clearly states:
“Portions of the patent application which were canceled are not part of the patent or application publication and thus cannot be relied on in a pre-AIA 35 U.S.C. 102(e) rejection over the issued patent or application publication.”
This means that only the content present in the final, published version of the patent or application can be used as prior art. Any material that was removed or canceled during the application process is not available for use in a 102(e) rejection.
To learn more:
Topics:
MPEP 2100 - Patentability,
MPEP 2136.02 - Content Of The Prior Art Available Against The Claims,
Patent Law,
Patent Procedure