QUESTION
Will my patent that was issued in 2010 be cited as prior art to a new utility application for a new invention that I just filed?
Asked on Mar 13th, 2014 on Intellectual Property - Florida
More details to this question:
It would seem that 35 U.S.C. 102 (a) (2) would apply and the 2010 patent could not be cited as prior art. There is only one element from the 2010 patent that is part of the new invention.
1 ANSWER
Intellectual Property Attorney serving Manchester, NH
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Hayes Soloway P.C.
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Yes, it would be cited as prior art. If any section of 102 leads to the conclusion that the 2010 patent is prior art, then the 2010 patent is prior art. You are correct that the 2010 patent is not prior art under 102 (a)(2). However, it is prior art under 102(a)(1), at least as a printed publication. Because it qualifies as prior art under 102(a)(1), it is not necessary to determine what analysis, if any, of other 102 sections would find.
For this reason, when a patent is about to issue, we generally do some analysis to see if we want to file any type of continuation application - before the issuing patent becomes prior art.
Good luck,
Todd
Answered on Mar 14th, 2014 at 1:11 PM