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[patatty30]

My question is whether you could still take advantage of the early 1st Prov. filing - even if it is abandoned - for a US Nonprov. (not the PCT) if the US Nonprov. is filed within 12 mos. since copendency between Prov. and Nonprov. is no longer required? (based on 35 USC 119(e)(1))

Then, can you do this without it impacting your ability to use the 2nd prov. for the PCT priority claim?

I understand that a 2nd filed provisional can serve as the start of the right of priority if the 1st prov. is expressly abandoned with no rights outstanding.

I think the answer of whether you could use 2nd prov. for PCT priority and 1st prov. for US Nonprov. priority would be based on interpretation of:
"The previous application may not thereafter serve as a basis for claiming a right of priority".
The previous application is the 1st prov..  It would not "thereafter" (after the time of filing subsequent app = 2nd prov.) serve as a basis for claiming right of priority for the PCT.
However does this mean it can’t serve as the priority basis for ANY application (ie US Nonprov.) or just the application at issue (ie PCT)?

0-------------------------3----------------------------6------------------------------9---------------------------------12
P1                                                                                                             AP1  P2   NP1

12---- -------------------15--------------------------18------------------------------21----------- --------------------24
                                                              NP1 Pub.                                                                        PCT   

P1 = prov. filed
AP1 = abandoned
P2 = prov. filed
NP1 = nonprov. filed after P2 filed with priority claim to P1
NP1 Pub. = publication
PCT = PCT filed with priority claim to P2

entire clause:
"(4) A subsequent application concerning the same subject as a previous first application within the meaning of paragraph (2), above, filed in the same country of the Union shall be considered as the first application, of which the filing date shall be the starting point of the period of priority, if, at the time of filing the subsequent application, the said previous application has been withdrawn, abandoned, or refused, without having been laid open to public inspection and without leaving any rights outstanding, and if it has not yet served as a basis for claiming a right of priority. The previous application may not thereafter serve as a basis for claiming a right of priority."
(http://www.wipo.int/treaties/en/ip/paris/trtdocs_wo020.html#P83_6610)

[Isaac]

I understand that a 2nd filed provisional can serve as the start of the right of priority if the 1st prov. is expressly abandoned with no rights outstanding.

The problem here is that your claim of benefit of the first provsional application proves that despite your express abandonment some rights were outstanding.   Your abandonment removed some, but not all rights.  So the question is really whether or not an abandonment of a provisional is ever effective at least until the initial 12 months have expired.

[patatty30]

Good point. 
I guess the US Nonprov. with the priority claim to abandoned prov. could just as well have been a PCT with
priority claim to abandoned provisional?
(precluding the argument of "no rights outstanding" means no rights with respect to PCT application)
I don't think there is a PCT rule (Paris Convention Article) requiring copendency at the time the priority claim is made.

Is it true that if the subsequent application (2nd national filing) is not used for priority and it too is abandoned the
1st application must be used or nothing can be used for priority?
For example one could not make the new "subsequent application" a 3rd application.

(I've heard there is something to this effect in:
Lisbon Revision of the Paris Convention1958, Minutes Of The Plenary MeetingReport of the Second Commission, pp 523-524)
in www.patentbar.com/AIPLARS2005-c-2.ppt

However, we are only talking about right to priority, not right to file and have a chance, correct? 
An application could always be filed without priority assuming priority is not essential to avoid
intervening ref. art or patent defeating events (i.e. publication).