Nuances about conflicting patent application (35 U.S.C. 102(a)(2)) among Taiwan, China, and USA
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There are significant differences among China, Taiwan, and USA which would affect filing and drafting strategy and should be paid attentions to.
 
 
 

AIA 35 U.S.C 102(a)(2) defines that a prior-filed and later-published patent application ¹ disclosing the claimed invention of an application under examination is an eligible prior art against the application under examination. 102(b)(2)(A) stipulates that if the subject matter disclosed by the prior art under 102(a)(2) is obtained directly or indirectly from the inventor, the prior art is an exception and cannot be used to reject the claimed invention.

China Practices:
According to Article 22.2 of China Patent Act and Section 2.2, Chapter 3, Part II of China Guidelines For Patent Examination 2010, a conflicting application is an application disclosing claimed invention of a patent application under examination and being filed by any entity prior to and published after the filing date of the application under examination. The conflicting application anticipates the claimed invention of the application under examination. The conflicting application includes the prior art defined in 102(a)(2) as well as the applications filed by the applicant.
According to the definition of the conflicting application, practitioners should pay attention to drafting of specifications involving species and generic inventions. In the following scenario, the applicant cannot get a patent to protect his/ her generic invention.
An inventor invented a species invention and filed the first application with SIPO to protect the species invention. Thereafter, the inventor invented another species and its generic invention, and filed the second application with SIPO to protect the species and generic inventions. According to Article 22.2 of China Patent Act, the first application is a conflicting application against the generic invention claimed in the second application because the first application discloses the first species which anticipates the generic invention claimed in the second application.
To prevent the prior-invented species disclosed in the first application from anticipating the later-invented generic claimed in the second application, the practitioners might consider drafting theoretically working generic in the first application.
Good news is that the conflicting application is only eligible to be a novelty citation, but cannot be used to combine with other prior arts to show claimed invention obvious. In other words, only if the prior-filed application discloses each and every element of claimed invention of the later-filed application, the claimed invention is anticipated. This is different from 35 U.S.C. 103 which stipulates all 102 prior arts can be combined together to show claimed invention obvious.

Taiwan Practices:
In accordance with Article 23 of Taiwan Patent Act, a prior-filed and later-published application ¹ is an eligible prior art against novelty of claimed inventions of a later-filed application. Notably, if the applicant of the prior-filed application is the same as that of the later-filed application, the prior-filed application is not an eligible Article 23 prior art. This is different from that in China practices.
 
Note 1. A prior-filed and later-published application is an application which is filed prior to the filing date of the application under examination and published/ issued after the filing date of the application. The filing date is the earliest priority date if any priority is claimed.