Q: If two provisional patents are filed. Does the second have any rights if it was filed prior to disclosure of the first?
If two patent applications are filed claiming the same invention, the second one will not mature into a patent, because it was filed after the first one. The fact that the first patent application is published after the filing of the second is irrelevant.
It is the FILING of the first application that is relevant, not the PUBLICATION of the first application.
I agree with Peter's answer to this one. I would like to add one important element that is often overlooked when considering the first-to-file question. Patents may or may not claim exactly the same thing. There is a huge amount of case law that informs patent lawyers on whether two inventions are the same, obvious in light of one another, or distinct, and whether that distinction would be patentable or not. Perhaps the first patent was filed, but there are material differences that would allow the second to mature to a patent, even if it results in a narrower patent than originally envisioned.
Essentially- it is still important to look at exactly what an earlier-filed patent discloses and claims before giving up on your own application. A lawyer can help determine whether your application is still valuable.
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