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[fb]

Our invention's provisional was filed in April 2011. We now find a similar patent that just issued in July 2011, which was filed in Dec 2010, and which PAIR says has a "earliest publication date" of July 2011 also.

Can their invention be used against novelty of our invention, considering that theirs was not published when we filed our provisional?

[NJ Patent1]

fb:  I'd look closely at 35 USC 102(e). 

[fb]

That's what I could not understand:

(e) the invention was described in - (1) an application for patent, published under section 122(b), by another filed in the United States before the invention by the applicant for patent

Their invention was described in their application that was filed in Dec 2010, but it was not published then. It would seem that 102(a) would be more applicable:

(a) the invention was known or used by others in this country

...since their invention had to be known to them in order for them to file in Dec 2010. But, their publication in July 2011 came after our April 2011 filing.

[NJ Patent1]

fb:  IMO the important part is filed in the United States before invention by the applicant.  It's metaphysical.  The second filer, who may / may not be the first inventor, is charged with knowing what they could not possibly have (lawfully) known.

[khazzah]

Our invention's provisional was filed in April 2011. We now find a similar patent that just issued in July 2011, which was filed in Dec 2010, and which PAIR says has a "earliest publication date" of July 2011 also.

Can their invention be used against novelty of our invention, considering that theirs was not published when we filed our provisional?

Yes, under 102(e), the "secret prior art" prong of 102.

[sooku]

Just a comment - you would have to prove that you were the first to actually reduce the invention to practice, which may not be possible.

[NJ Patent1]

Sooku:  As far as I am aware, you would have to show that Applicant was in actual posession of at least one (prefreably more than one) embodiment within the scope of the rejected claim(s).  In the chemical and mechanical arts, this is no too hard to do - IF the proof exists (e.g notebooks or lab reports).