Can canceled figures from a foreign patent application be used as prior art?

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.

Yes, canceled figures from a foreign patent application can be used as prior art under certain circumstances. The MPEP provides an important case example:

“Figures that had been canceled from a Canadian patent application before issuance of the patent were available as prior art under pre-AIA 35 U.S.C. 102(b) as of the date the application became publicly accessible.” Bruckelmyer v. Ground Heaters, Inc., 445 F.3d 1374, 78 USPQ2d 1684 (Fed. Cir. 2006).

Key points to remember:

• The critical factor is public accessibility, not whether the figures were included in the final patent.
• The date of public inspection or availability is crucial for determining prior art status.
• This principle applies to 35 U.S.C. 102(a)(1) or pre-AIA 35 U.S.C. 102(b) rejections.

When considering foreign patent applications as prior art, always verify the date of public accessibility and ensure that the content was available for public inspection.