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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