How should examiners handle references with recent publication dates?

Examiners should carefully consider how to handle references with recent publication dates during the patent examination process. The MPEP 904.03 provides guidance on this matter:

Sometimes the best reference will have a publication date less than a year prior to the application filing date, hence it will be open to being overcome under 37 CFR 1.130 or 1.131. In such circumstances, if a second reference exists which cannot be so overcome and which, though inferior, is an adequate basis for rejection, the claims should be additionally rejected thereon.

This approach ensures that even if the best reference is potentially overcome by the applicant, the examiner has a backup rejection in place. Examiners should consider using multiple references when dealing with recent prior art to maintain a strong rejection basis.

To learn more:

• recent prior art
• patent rejection
• reference selection
• 37 CFR 1.130
• 37 CFR 1.131