What is a provisional rejection under 35 U.S.C. 102(a)(2)?

This page is an FAQ based on guidance from the Manual of Patent Examining Procedure. It is provided as guidance, with links to the ground truth sources. This is information only: it is not legal advice.

A provisional rejection under 35 U.S.C. 102(a)(2) is a type of patent rejection that can be made when there are copending U.S. patent applications with overlapping subject matter. According to MPEP 2154.01(d):

“If an earlier filed, copending, and unpublished U.S. patent application discloses subject matter which would anticipate the claims in a later filed pending U.S. application which has a different inventive entity, the examiner should determine whether a provisional rejection under 35 U.S.C. 102(a)(2) of the later filed application can be made.”

This type of rejection is considered ‘provisional’ because it is based on an unpublished application that may change before it is published or issued as a patent.