PTO BPAI holds provisional applications are prior art under 102(e)

"[T]he statutory scheme of Title 35 indicates that Congress intended for "applications for patent" under [Section] 102(e) to apply to both regular utility applications and provisional applications, particularly when considering [Sections] 111 (b) and 102(e) together. As a published "application for patent" under this statutory framework, a provisional application-like a regular utility application-constitutes prior art for all that it teaches and, as such, promotes the progress of the useful arts."

Ex Parte Yamaguchi, Appeal 2007-44112, BPAI, Aug. 29, 2008 (http://www.uspto.gov/web/offices/dcom/bpai/prec/fd074412.pdf)

 

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