What is the status of unpublished U.S. applications as prior art under pre-AIA 35 U.S.C. 102(e)?
Unpublished U.S. applications can serve as prior art under pre-AIA 35 U.S.C. 102(e) in certain circumstances. According to the MPEP, If an earlier filed, copending, and unpublished U.S. patent application discloses subject matter which would anticipate the claims in a later filed pending U.S. application which has a different inventive entity, the examiner should determine whether a provisional rejection under pre-AIA 35 U.S.C. 102(e) of the later filed application can be made.
However, this is subject to specific conditions, such as common assignee, applicant, or inventor.
To learn more:
Topics:
MPEP 2100 - Patentability,
MPEP 2136.01 - Status Of Unpublished Or Published As Redacted U.S. Application As A Reference Under Pre - Aia 35 U.S.C. 102(E),
Patent Law,
Patent Procedure