How can foreign patent applications be considered “published” for prior art purposes?

Foreign patent applications can be considered “published” and used as prior art under certain conditions, even if they are not issued in printed form. The key factor is public accessibility. As explained in the MPEP:

“When the specification is not issued in printed form but is announced in an official journal and anyone can inspect or obtain copies, it is sufficiently accessible to the public to constitute a ‘publication’ within the meaning of 35 U.S.C. 102(a)(1) or pre-AIA 35 U.S.C. 102(a) and (b).” See In re Wyer, 655 F.2d 221, 210 USPQ 790 (CCPA 1981).

The MPEP further clarifies:

• The accessibility of laid open applications has increased with technology advancements.
• Documents in easily reproducible form are considered “printed publications” under 35 U.S.C. 102.
• Examiners should confirm the date of publication before relying on the contents of a foreign patent application as prior art.

It’s important to note that the definition of “published” may evolve with technological changes that affect document accessibility.

To learn more:

• foreign patent applications
• prior art
• publication
• public accessibility
• patent law