How can a 37 CFR 1.131 affidavit affect the on-sale bar determination?

A 37 CFR 1.131 affidavit, commonly used to swear behind a reference, can inadvertently affect the on-sale bar determination. The MPEP warns:

Affidavits or declarations submitted under 37 CFR 1.131 to swear behind a reference may constitute, among other things, an admission that an invention was “complete” more than 1 year before the filing of an application. (MPEP 2133.03(c))

This means that while trying to overcome a prior art reference, an inventor might inadvertently admit to having a complete invention more than one year before the filing date, potentially triggering the on-sale bar. Inventors and patent practitioners should be cautious when preparing such affidavits to avoid unintended consequences.

To learn more:

• 37 CFR 1.131 affidavit
• on-sale bar
• swearing behind
• patent application
• invention completion