Pending Applications

Except as provided in

37 CFR 1.11(b)

,

37 CFR 1.14(a)(1)(v)

and

37 CFR 1.14(a)(1)(vi)

, pending U.S.

applications which have not been published are generally preserved in confidence

(

37 CFR

1.14(a)

) and are not available as references. However, claims in

one nonprovisional application may be rejected on the claimed subject matter of a

copending nonprovisional application of the same inventive entity. See

MPEP

§ 804

. For applications having a common assignee or applicant

and different inventive entities claiming a single inventive concept, see

MPEP § 804.03

. See also

MPEP § 2127

,

subsection IV.

The American Inventors Protection Act of 1999 (AIPA) was enacted into

law on November 29, 1999. The AIPA amended

35 U.S.C. 122

to provide that, with

certain exceptions, applications for patent filed on or after November 29, 2000 shall be

published promptly after the expiration of a period of eighteen (18) months from the

earliest filing date for which a benefit is sought under title 35, United States Code,

and that an application may be published earlier at the request of the applicant. See

35 U.S.C. 122(b)

and

37 CFR 1.215

and

1.219

. In

addition, applications filed prior to November 29, 2000, but pending on November 29,

2000, may be published if a request for voluntary publication is filed. See

37 CFR

1.221

. Patent applications filed on or after November 29, 2000,

and those including a request for voluntary publication shall be published except for

the following enumerated exceptions.

First, an application shall not be published if it is:

(A) no longer pending;

(B) subject to a secrecy order under

35 U.S.C.

181

, that is, publication or disclosure of the application

would be detrimental to national security;

(C) a provisional application filed under

35 U.S.C.

111(b)

;

(D) an application for a design patent filed under

35 U.S.C.

171

;

(E) an application for an International design application filed

under

35 U.S.C. 382

; or

(F) a reissue application filed under

35 U.S.C.

251

recy order under

35 U.S.C.

181

, that is, publication or disclosure of the application

would be detrimental to national security;

(C) a provisional application filed under

35 U.S.C.

111(b)

;

(D) an application for a design patent filed under

35 U.S.C.

171

;

(E) an application for an International design application filed

under

35 U.S.C. 382

; or

(F) a reissue application filed under

35 U.S.C.

251

.

Second, an application shall not be published if an applicant submits

at the time of filing of the application a request for nonpublication. See

MPEP

§ 1122

.

U.S. patent application publications are prior art under

pre-AIA 35 U.S.C.

102(a)

and

102(b)

and

35 U.S.C.

102(a)(1)

as of the publication date. Under

pre-AIA 35 U.S.C.

102(e)(1)

and

35 U.S.C. 102(a)(2)

, a U.S. patent

application publication under

35 U.S.C. 122(b)

is considered to be

prior art as of the earliest effective U.S. filing date of the published application.

Additionally, a U.S. patent application publication of a National Stage application and

a WIPO publication of an international application under

PCT Article 21(2)

are considered to be prior art under

pre-AIA 35 U.S.C. 102(e)

as of the

international filing date, or an earlier effective U.S. filing date,

only

if the international application was filed on or after

November 29, 2000, designated the United States, and was published under

PCT Article

21(2)

in English. Similarly, a U.S. patent application publication

of a National Stage application and a WIPO publication of an international application

under

PCT Article

21(2)

are considered to be prior art under

35 U.S.C.

102(a)(2)

as of the international filing date, or an earlier

effective U.S. filing date.