What is the difference between a Defensive Publication and a patent application publication?

A Defensive Publication is distinct from a patent application publication in several ways:

  • It is not a patent or an application publication under 35 U.S.C. 122(b).
  • It is considered a publication for prior art purposes.
  • It becomes prior art only as of its publication date.
  • The applicant waives rights to an enforceable patent when opting for a Defensive Publication.

The MPEP explicitly states: A defensive publication is not a patent or an application publication under 35 U.S.C. 122(b); it is a publication. Therefore, it is prior art only as of its publication date.

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Tags: Defensive Publications, patent application publication, patent examination, prior art