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A provisional application is filed to USPTO and something turns out to be wrong and therefore has to be modified when the following non-provisional application is filed. In this case one problem is that the non-provisional patent application will not be able to claim priority to the provisional patent application filing date.

Can other problems arise like:

(a) what has been disclosed in the provisional application can interfere with the non-provisional application constituting prior art? (In this case the one year grace period wouldn't apply because the non-provisional would not the be prosecution of the same invention.)

(b) if the provisional application has also been disclosed to somebody else than USPTO (like VCs) before non-provisional application filing (which is then modified as described above) then can it interfere?

If the provisional application filed to USPTO something turns out to be wrong is it possible to send a second modified provisional application?

Then the non-provisional application has to be filed within a year from the filing date of the first or the second provisional application?

What about the problems (a) and (b) in this case?

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1 Answer 1

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The portions of the non-provisional that are not supported by (i.e., are different from) the provisional will not get the benefit of the provisional application's date.

A) A provisional application is not available to the public and can not be [directly] used as prior art. B) The one-year grace period should prevent your own work from being used against you (assuming you file within a year of any sort of public disclosure or sale).

You can always file a new provisional application, but as noted above, the newly added (different) material will be granted a filing date as of the date of the new application (whether provisional or non-provisional).

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