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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 ...


The examiners that I know would see through this and be at least slightly annoyed. This would not help you. I look at the IDS as a list of references that I am aware of and that I have had time to make an argument against. I would place it first on the list and let it stand there to suggest that I am aware of it and I'm ready to defend against it.


I have been told by someone at the USPTO that it really doesn't matter whether the revised IDS form's date is revised to the date of resubmission or just kept with its original date. Not sure this was a reliable answer but that's the response I received.

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