When can a provisional rejection be made for copending applications?

This page is an FAQ based on guidance from the Manual of Patent Examining Procedure. It is provided as guidance, with links to the ground truth sources. This is information only: it is not legal advice.

A provisional rejection can be made for copending applications under specific circumstances. According to MPEP 2154.01(d):

“If a first application has (1) at least one common (joint) inventor or common applicant with a second application or the applications are commonly assigned, and (2) the first application, upon publication or issuance, would qualify as prior art under 35 U.S.C. 102(a)(2) to the second application, then a provisional anticipation or obviousness rejection of the second application may be made on the basis of the first application.”

This means that provisional rejections can be made when there is a connection between the applications (common inventor, applicant, or assignee) and the earlier application could potentially serve as prior art once published or issued.