Can an inventor use a 37 CFR 1.131(a) affidavit to overcome a rejection based on a commonly owned patent or application?
No, an inventor cannot use a 37 CFR 1.131(a) affidavit to overcome a rejection based on a commonly owned patent or application. This is because such references are not considered prior art that can be antedated.
According to MPEP 715.01(a): “Where the reference is a U.S. patent or patent application publication of a common assignee with at least one common inventor, claiming a patentably indistinct invention, a rejection of the application claims under pre-AIA 35 U.S.C. 102(e), (f) or (g), or pre-AIA 35 U.S.C. 103(a) using the patent or patent application publication as a reference is proper. In re Duck, 560 F.2d 1057, 1060, 195 USPQ 2, 4 (CCPA 1977). Such a rejection can be overcome by filing a terminal disclaimer in accordance with 37 CFR 1.321(c).”
In this case, the appropriate action would be to file a terminal disclaimer rather than attempting to antedate the reference.
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