How are Defensive Publications cited 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.

Defensive Publications are cited as prior art under specific conditions:

• They are considered printed publications and cited under 35 U.S.C. 102(a)(1) or pre-AIA 35 U.S.C. 102(a) or 102(b).
• They become effective as prior art from the date of publication in the Official Gazette.
• They can be used alone or in combination with other prior art in rejecting claims under 35 U.S.C. 102(a)(1) or 103 or pre-AIA 35 U.S.C. 102 and 103.

The MPEP states: These printed publications are cited as prior art under 35 U.S.C. 102(a)(1) or pre-AIA 35 U.S.C. 102(a) or 102(b) effective from the date of publication in the Official Gazette.