Can a provisional application be used as a reference for double patenting rejections?
Can a provisional application be used as a reference for double patenting rejections?
No, a provisional application cannot be used as a reference for double patenting rejections. The MPEP 804.02 clearly states:
“A provisional application, which is a nonprovisional application under 35 U.S.C. 111(a), cannot be used as a reference in a double patenting rejection.”
This is because:
- Provisional applications do not mature into patents
- They are not examined for patentability
- They expire after one year if not converted to a non-provisional application
However, it’s important to note that while a provisional application itself cannot be used for a double patenting rejection, a non-provisional application claiming priority to that provisional may be used if it meets the criteria for a proper reference in a double patenting rejection.
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