Can an abandoned application be used as a reference against other applications?
Can an abandoned application be used as a reference against other applications?
Yes, an abandoned application can be used as a reference against other applications under certain circumstances. The MPEP 711.02(b) states:
“An abandoned application, whether abandoned by operation of law or expressly abandoned by the applicant, is available as prior art under 35 U.S.C. 102(a)(2) as of its earliest effective U.S. filing date and if it was published under 35 U.S.C. 122(b), it is also available as prior art under 35 U.S.C. 102(a)(1) as of its publication date.”
This means that abandoned applications can serve as prior art references in two ways:
- Under 35 U.S.C. 102(a)(2): From its earliest effective U.S. filing date
- Under 35 U.S.C. 102(a)(1): From its publication date, if published under 35 U.S.C. 122(b)
It’s important to note that the abandonment status does not prevent the application from being used as a reference for prior art purposes.
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