What is the significance of the 35 U.S.C. 122(b) publication in patent examination?
The publication of a patent application under 35 U.S.C. 122(b) is significant in patent examination, particularly for copending applications. According to MPEP 2154.01(d):
“If the first application will not be published pursuant to 35 U.S.C. 122(b), it must be allowed to issue once all the statutory requirements are met. After the patent is published, it may be used as a reference in a rejection under 35 U.S.C. 102(a)(2) in the still pending application as appropriate.”
This means that an unpublished application cannot be used as prior art against another application unless there’s a common connection. However, once the application is published or issues as a patent, it can be used as prior art under 35 U.S.C. 102(a)(2) against pending applications.
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