When can a provisional rejection be made under pre-AIA 35 U.S.C. 102(e)?
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pre-AIA 35 U.S.C. 102(e) can be made when there is a common assignee, applicant, or inventor between the earlier filed, unpublished application and the later filed application.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an application publication), it is permissible to provisionally reject a later application over an earlier filed, and unpublished, application under pre-AIA 35 U.S.C. 102(e) when there is a common assignee, applicant, or inventor.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.
To learn more:
Topics:
MPEP 2100 - Patentability,
MPEP 2136.01 - Status Of Unpublished Or Published As Redacted U.S. Application As A Reference Under Pre - Aia 35 U.S.C. 102(E),
Patent Law,
Patent Procedure