How does 37 CFR 1.130 help overcome prior art rejections?

37 CFR 1.130 provides a mechanism for applicants to overcome prior art rejections by establishing that certain disclosures should not be considered prior art under the America Invents Act (AIA). It helps in two primary ways:

1. Attribution (37 CFR 1.130(a)): By showing that the disclosure was made by the inventor or joint inventor, or that the subject matter was obtained from the inventor or joint inventor, the applicant can establish that the disclosure is not prior art.
2. Prior Public Disclosure (37 CFR 1.130(b)): By demonstrating that the subject matter was publicly disclosed by the inventor, joint inventor, or someone who obtained it from them before the prior art disclosure, the applicant can except the intervening disclosure as prior art.

As stated in the MPEP: The Office has provided a mechanism in 37 CFR 1.130 for filing an affidavit or declaration to establish that a disclosure is not prior art under AIA 35 U.S.C. 102(a) due to an exception in AIA 35 U.S.C. 102(b).

This allows applicants to overcome rejections based on disclosures that would otherwise be considered prior art, helping to establish the novelty and non-obviousness of their claimed inventions.

To learn more:

• 37 CFR 1.130
• prior art rejections
• AIA
• America Invents Act
• attribution
• prior public disclosure