Kyle Gottuso


This Note will examine whether prior art found in a provisional patent application can (and should) act as prior art to defeat a subsequent application by a second inventor. In looking at this issue, this Note will ask if Giacomini can be reconciled with the principles and policies that underlie patent law. To do so, this Note will first review the facts and holding of Giacomini. Then this Note will survey the patent statutes, giving particular attention to those statutes that deal with priority and prior art. Next, this Note will examine the reasoning of the Giacomini court. Finally, this Note will look at that reasoning in light of 35 U.S.C. sections 102(e) and 119 and the policy concerns behind these statutes, concluding that Giacomini expands section 102(e) beyond its intended purpose.

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