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[Jp]

What happens if a new innovation gets into the public domain, . .

and another inventor with the same or similar innovation calls up the

owner of the first and ask if he has a patent and the answer is no, . .

and the second has a conception date that is prior to the public disclosure of

the innovation ?

[Isaac]

and the second has a conception date that is prior to the public disclosure of the innovation ?

Ideally, the second inventor should get a rejection based on the public disclosure.  The second inventor can attempt to prove conception and diligence from a point in time prior to the publication date, to remove a 102(a) or 102(b) rejection.  But proof of conception alone is not enough

And it is still possible there is a 102(g) rejection out there based on the first inventor's work that will render the patent invalid.

[khazzah]

What happens if a new innovation gets into the public domain, . .
and another inventor with the same or similar innovation calls up the
owner of the first and ask if he has a patent and the answer is no, . .
and the second has a conception date that is prior to the public disclosure of
the innovation ?

If the second inventor files a patent application *after* the first innovation went into the public domain, the second inventor probably has a duty to disclosure the first inventor's innovation to the PTO.

If it's the "same" innovation, then it seems to me the duty is there, no question.

If it's a "similar" innovation, then *theoretically* there are circumstances in which the first inventor's innovation is not material to the second innovation. But I think most practitioners would disclose anyway to reduce the risk of inequitable conduct.

Having disclosed, the Examiner may use the public domain innovation as prior art against the second inventor's application. 

You didn't say what you mean by "public domain": non-patent publication; patent publication; public use; sale? If it's a publication of some kind, the Examiner has all he needs to determine which 102 rejection is proper. If it's public use or sale, the Examiner might issue a Requirement for Information under CFR 1.105 to get more details.