When may an abandoned application be used as prior art?
An abandoned patent application may become evidence of prior art only when it has been appropriately disclosed, as, for example, when the abandoned patent [application] is reference[d] in the disclosure of another patent, in a publication, or by voluntary disclosure under former Defensive Publication rule
An abandoned patent application becomes available as prior art only as of the date the public gains access to it.
- However, the subject matter of an abandoned application, including both provisional and nonprovisional applications, referred to in a prior art U.S. patent or U.S. patent application publication may be relied on in a 35 U.S.C. 102(a)(2) or pre-AIA 35 U.S.C. 102(e) rejection based on that patent or patent application publication if the disclosure of the abandoned application is actually included or incorporated by reference in the patent.
The answer to this question can be found in chapter 2100 of the MPEP. This chapter covers Patentability.
The answer is from the 9th Edition, Revision 08.2017. Depending on future changes to the MPEP, the question and answer may or may not be applicable in later Editions or revisions.
This question and answer come from section 2127 of the MPEP. The following is a brief summary of section 2127.
2127 Domestic and Foreign Patent Applications as Prior Art
This section discusses domestic and foreign patent applications as prior art. It covers abandoned applications, including provisional applications. Essentially, abandoned applications disclosed to the public can be used as prior art.
In addition, it covers applications which have issued as patents and foreign applications open for public inspection. Lastly, it covers pending U.S. applications.