Treaty signatory status may not be sufficient, given that for the US, most treaties are not self-enacting into US law.

So, your Paris item may not be as compelling as you may have thought.

This renders your summary paragraph to be a bit circular.

Mind you, I am already of the camp that an entire earlier document becomes “disclosed” (for its entirety) regardless of whether or not a later document is claiming any specific information from that earlier document.

The question though remains (for any of that entirety of the earlier document):

Is it the date of the second document which is in effect the date of the mechanism of uncovering that prior hidden document?

Is it the date of the prior hidden document itself?

Part of the underlying issue here goes deeper than the mere status of that earlier document being a provisional or non-provisional. (Let’s not forget that a mechanism still exists to convert — and not just claim priority — a provisional into a non-provisional).

A foundation piece of US patent law — directly tied to the Quid Pro Quo bargain that must remain in place — is the notion that until grant ***, a patentee remains in charge of the ability to nullify the attempted deal. And by executing and nullifying that attempted deal, the subject matter MAY become as if it never existed (as prior art).

*** it is with the obfuscation involved in pre-grant publication that throws a massive wrinkle into the equation. It absolutely must be remembered that a pre-grant publication changes the Quid Pro Quo deal in a very detrimental manner for the patentee.

We moved from

a “you — the Office — get to share” in exchange for “my inchoate right has become a full Private personal right”

to

a “you get to share” in exchange for a chance for a [now with Oil States] Public Franchise right.

Two additional items to keep in mind:

This “modified deal” can be reverted back to the original deal for non-provisionals with the avenue of non-publication requests.

Also, Congress realized a bit of their cheapening of the deal and instituted Patent Term adjustment which was supposed to guarantee that applicants had a meaningful view of what examination would yield PRIOR TO publication, and thereby could still “nullify” their material becoming prior art by abandoning after a first shot examination on the merits and prior to publication.

Publication, while effectively “done” in some instances (such as filing abroad where the patent deals were never the same as the deal that the US sovereign had chosen), needs to be seen as the detriment to the patentee that it is.

Once published, the Office has no real stake in the game. They have already “gotten theirs” and there is nothing further to be gained (for them directly through the Quid Pro Quo). This of course leads to slow and shoddy examination, partiality to a Reject Reject Reject mindset, and the overall view that the US Quid Pro Quo should be “Harm-onized” away from Right to mere “chance” for Right.

Those who understand what helped drive US innovation to be the world leader (typically dubbed “maximalists”) understand the difference between the old US “deal” and the modified US “deal.”

It is under that backdrop — in that larger context — that this “oddity” of something being or not being prior art should be understood.

As it currently is, “secret prior art” very much remains a factual matter, and that “secret prior art” may or may not realize itself into being actual prior art (as that term is to be understood in its legal context), based solely on decisions not yet made by owners of that “secret prior art.”

One need resist an uncritical and blind “well that must be absurd” view that negates this future ability to decide what is – and what is not – prior art.