How are pending U.S. patent applications treated in terms of confidentiality and prior art?

Pending U.S. patent applications are generally kept confidential, but there are important exceptions and considerations:

• Most pending applications are preserved in confidence as per 37 CFR 1.14(a).
• Exceptions include published applications, reissue applications, and applications where public inspection has been granted.
• Applications with common assignees or inventors may be used for certain rejections, even if not published.

The MPEP provides specific guidance:

“If the copending applications differ by at least one inventor and at least one of the applications would have been obvious in view of the other, a provisional rejection over 35 U.S.C. 102(a)(2) or pre-AIA 35 U.S.C. 102(e) or 35 U.S.C. 103 is made when appropriate.”

For more information on rejections involving pending applications, refer to:

• MPEP § 804 for double patenting rejections
• MPEP §§ 2136.01, 2146.03(a) and 2154.01(d) for provisional rejections

To learn more:

• pending applications
• confidentiality
• prior art
• provisional rejection
• double patenting