What is the status of abandoned applications as prior art?

Abandoned applications can serve as prior art under certain conditions:

  • If the abandoned application was previously published under 35 U.S.C. 122(b), it’s considered prior art as of its publication date under pre-AIA 35 U.S.C. 102(a) and 102(b) and 35 U.S.C. 102(a)(1).
  • The MPEP states: “If an abandoned application was previously published under 35 U.S.C. 122(b), that patent application publication is available as prior art under pre-AIA 35 U.S.C. 102(a) and 102(b) and 35 U.S.C. 102(a)(1) as of its patent application publication date.”
  • Unpublished abandoned applications may become prior art if they are identified or claimed in certain published documents, as per 37 CFR 1.14(a)(1)(iv).

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Tags: Abandoned Applications, patent law, prior art, USPTO