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   Author  Topic: Prior art  (Read 794 times)
shannu
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Posts: 13
Prior art
« on: Dec 6th, 2007, 7:01am »
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Ref 1
Provisional Filed in Sep., 1998 [SI]
PCT filed in Sep., 1999
PCT Published in March 2000
NPE in US in April 2001
 
Ref 2
Provisional Filed in Feb., 2000 [GB]
PCT filed in Feb., 2001
PCT Published in Aug., 2001
NPE in US in Aug., 2002
 
Does Ref 1 qualifies as prior art for Ref 2. Please confirm
 
Regards
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Wiscagent
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Posts: 843
Re: Prior art
« Reply #1 on: Dec 6th, 2007, 10:25am »
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I'm assuming that "NPE" is a regular US patent application, and that your concern is whether Ref 1 is a prior art reference against a US patent application filed in August 2002.
 
The Sept. '98 provisional application, and the PCT application filed in Sept.  '99 would be usable under 35 USC 102(a) as prior art references.
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Richard Tanzer
Patent Agent
Isaac
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Posts: 3472
Re: Prior art
« Reply #2 on: Dec 6th, 2007, 2:20pm »
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A provisional is only a reference based on the date it gets published or on the date an application claiming priority to it is published.   That date is March 2000.
 
Further the PCT of reference 1 does not have a 102(e) date.
 
Is the NPE a national stage entry of the PCT application filed in February 2001?  If so, then the benefit claim to the Feb 2000 provisional may be  used to overcome a 102(a) rejection based on the March 2000 date.  
 
 
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Isaac
Wiscagent
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Posts: 843
Re: Prior art
« Reply #3 on: Dec 6th, 2007, 8:05pm »
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Isaac -
 
I sit corrected.  In the scenario provided, the Sept 1998 provisional application for ref 1 was not "in this country" so 102(a) does not apply.  Thank you.
 
 - Rich
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Richard Tanzer
Patent Agent
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