Can a patent pending be published if prior art is already patented? 2 Answers as of November 16, 2010

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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Kafantaris Law Group
Kafantaris Law Group | Theo Kafantaris
It can be published, but it will not be granted.
Answer Applies to: California
Replied: 11/16/2010
Michael M. Ahmadshahi
Michael M. Ahmadshahi | Michael M. Ahmadshahi, Ph.D., Esq.
Yes because a patent application is published 18 months from the filing date, save a request for non publication, and the examination of the patent application, in some instances, takes longer than 18 months. Under this situation, a patent application that is published lives side by side along an issued patent. A patent search should have been done to avoid this situation.
Answer Applies to: California
Replied: 11/8/2010
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