Can an affidavit or declaration under 37 CFR 1.131(a) be used to swear behind a U.S. patent or U.S. patent application publication?

An affidavit or declaration under 37 CFR 1.131(a) cannot be used to swear behind a U.S. patent or U.S. patent application publication that claims the rejected invention. The MPEP clearly states:

’37 CFR 1.131(a) is not available if the reference is a U.S. patent or U.S. patent application publication of a pending or patented application to another or others which claims the rejected invention.’

In such cases, the applicant must instead file an affidavit or declaration under 37 CFR 1.130 to establish prior invention or to disqualify the disclosure as prior art. This limitation is important to understand when considering strategies for overcoming prior art rejections.

To learn more:

• affidavit
• declaration
• 37 CFR 1.131(a)
• U.S. patent
• U.S. patent application publication

To learn more:

• 37 CFR 1.131(a)
• U.S. patent
• U.S. patent application publication