Let's say,

I filed my Provisional in Jan 2019.

I disclosed my work to the public in Mar 2019.

An infringer copied my disclosed work and released a product in Jun 2019.

I'll file a non-provisional in Dec 2019.

Since Dec 2019 will be my filing date, I believe the infringed product will be treated as a prior art.

So do I have to disclose the infringement in the IDS form?

1 Answer 1


If you file the non-provisional within the 1 year time after the provisional, then anything well described in the provisonal gets the date of the provisional. If the "infringing" product is based entirely on the content of the provisional it does not strictly need to go on the IDS since it would not technically be prior art. However, it might be a good idea to include it and deal with it sooner in the process rather than later.

Also, nothing infringes anything until a patent is issued.

  • 1
    It's really important to understand that a patent isn't a patent until it's issued. A business can play Chicken with a patent being issued, but until the patent is issued, it isn't a patent. Sep 8, 2019 at 0:52

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