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Non-published patent application prior art?

fredmcgriff's Avatar

I submitted a not-so-ready non-provisional. It was never published due to missing items, then was abandoned (unintentional). Is it prior art if it was never published? I say no because it is not in public domain. Trying to decide if I need to spend the $1,500+ to revive it only to file a continuation. Or just file a new application as if it never existed (since it didn't publish).

Thanks!

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magurn's Avataren_staff_badge

Hi Fred!

Edison Nation cannot provide you legal guidance on patent matters. We would suggest posing this question to a patent attorney to make the best decision on next steps.

Best of luck!

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smallprojects's Avatargold

"I submitted a not-so-ready non-provisional. It was never published due to missing items, then was abandoned (unintentional). Is it prior art if it was never published? I say no because it is not in public domain. Trying to decide if I need to spend the $1,500+ to revive it only to file a continuation. Or just file a new application as if it never existed (since it didn't publish). "

It is probably not considered prior art if it was never published and never put into public domain - such as a website, tradeshow booth, showing everyone you know type of thing.

Since you filed the full Non-Provisional Patent and it was rejected as many patent filings are, you can likely pay fees and resubmit a corrected version of the patent. 

Refiling a newer / better application is also likely an option, this will also probably start a newer more recent date of protection. Personally, I would file a new application with better coverage and seal up any leaks in the boat. 

Just my humble opinion, do whatever makes the most sense for you.

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magurn's Avataren_staff_badge

Hi John!

I was responding on behalf of the company and its stance - this is standard for us. If you have additional guidance you can provide you're certainly welcome to.

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