Can a patent pending be published if prior art is already patented? How? 7 Answers as of May 12, 2015

I found a patent issued similar to my patent pending that is published. Can a patent application be published if there is a similar patent already issued?

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Eminent IP, P.C.
Eminent IP, P.C. | Paul C. Oestreich
I am not sure I completely understand your question, so I will try to rephrase it so that I can answer it. It would appear that you are asking whether there are any prior art considerations or analysis that takes place at the Patent Office before a patent application is published? The answer to that question is no. US patent applications are published automatically (approximately 18 month after filing date), unless a specific "non-publication request" is filed with the original application. There is no review on the merits of whether the subject matter disclosed and claimed in any particular patent application is "patentable" before it is published. It is just published for whatever it discloses. Such a published patent application becomes prior art to any other patent applications that follow its filing date. So to answer your last question, yes, a patent application can be published even if there is a similar patent already issued. That issued patent may prevent your patent application from issuing if it is in fact relevant prior art and is considered by the examiner. But, it has no relevance on whether your pending application gets published or not.
Answer Applies to: Utah
Replied: 5/12/2015
Webb IP Law Group
Webb IP Law Group | Jason P Webb
Yes it can. Patent applications are typically published before they are examined. They are published on a schedule and so there is no comparison to the prior art during the publication process. Therefore when the patent office moves forward with publishing, the prior art is not relevant to their process.
Answer Applies to: Utah
Replied: 5/11/2015
Microtechnology Law & Analysis | Daniel Flamm
Short answer is yes. Also, please bear in mind that it is the claims that decide what is being patented and/or whether there is an interference between two applications filed by different inventors/entities.
Answer Applies to: California
Replied: 5/11/2015
Sebby Law Office
Sebby Law Office | Jayne Sebby
If a patent for a similar product has already been issued, you're likely going to have difficulty getting a patent issued for your idea. Once you submit an application of any kind to the USPTO, the information in that application is available for anyone to see on the USPTO web site.
Answer Applies to: Nebraska
Replied: 5/11/2015
Barton Barton & Plotkin
Barton Barton & Plotkin | Maurice Ross
Publication of patent applications does not depend on whether prior patents or publications exist that are substantially similar to the patent applications. However, the mere publication of a patent application does not give the patent owner any substantive rights. Further, it is meaningless (and highly misleading) for the applicant to claim that a "patent is pending" merely because a patent application is filed. A substantial proportion of patent applications are rejected. There mere filing and publication of a patent application confers no meaningful substantive patent rights to the patent applicant (other than the filing date of the application). What matters is how the patent application is examined by the patent examiner-applications are often published before they are examined by the patent application-thus, publication means almost nothing, and publication does not mean that the patent application is distinguishable from the prior art.
Answer Applies to: New York
Replied: 5/11/2015
    Banner & Witcoff, Ltd. | Ernie Linek
    US Patent Applications are automatically published - 18 months after the filing date - unless the applicant requests no publication - in writing at the time of filing. Thus - your application was published. The act of publication has no relationship to the examination of your application. The examiner will usually find prior art that is close to your invention. You must then amend your application claims to be both novel and non-obvious over the prior art. Once you do that - your patent can be issued. Good Luck!
    Answer Applies to: Massachusetts
    Replied: 5/11/2015
    Law Office of Kirk Buhler
    Law Office of Kirk Buhler | Kirk A Buhler
    Yes, you can file a patent on nearly anything including duplicates of prior inventions. The patent office publishes patent application 18 months after their earliest effective filing date, regardless of similarities to prior patents and publications. Publishing an application is not an issued patent. A patent examiner will rejected a new application based upon a prior patent, publication or invention. Once you become aware of a prior patent or publication you have a duty to notify the examiner of the prior art.
    Answer Applies to: California
    Replied: 5/11/2015
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