When can a provisional rejection be made under pre-AIA 35 U.S.C. 102(e)?

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 pre-AIA 35 U.S.C. 102(e) can be made when there is a common assignee, applicant, or inventor between the earlier filed, unpublished application and the later filed application. The MPEP states: Based on the assumption that an application will ripen into a U.S. patent (or into an application publication), it is permissible to provisionally reject a later application over an earlier filed, and unpublished, application under pre-AIA 35 U.S.C. 102(e) when there is a common assignee, applicant, or inventor. This provision allows examiners to address potential prior art issues early in the examination process.