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?

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Source: FAQ (MPEP-Based) BlueIron Update: 2024-09-10 10 Rules 5 Related FAQs This page is an FAQ based on guidance from the Manual of Patent Examining Procedure. It is provided as guidance, with links to the ground truth sources. This is information only: it is not legal advice. 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. Related Rules from the Manual of Patent Examining Procedure 10 rules Collapse Affidavit or Declaration Under 37 CFR 1.131(a) Must Follow Form Paragraph 7.57.fti MPEP 715 Required Affidavit or Declaration Under 37 CFR 1.131(a) Must Follow Form Paragraph 7.57.fti MPEP 715 Required Affidavit or Declaration Under 37 CFR 1.131(a) Must Follow Specific Form MPEP 715 Required Admissions of Prior Art Cannot Be Overcome by Affidavit MPEP 715 Prohibited Affidavit or Declaration to Overcome Prior Art Rejection MPEP 715 Permitted Patent Application Publications as Prior Art MPEP 715 Permitted Requirement for Oath or Declaration to Disqualify Prior Art MPEP 715 Oath or Declaration Requirement for Prior Invention MPEP 718 Prohibited Date to Overcome Prior Art Is Effective Date MPEP 715 Affidavit Under 37 CFR 1.131(a) Must Follow Paragraph 7.57.fti MPEP 715 Required Other Related FAQs 5 FAQs Collapse How does MPEP 715.05 apply to applications subject to the AIA? What is the role of terminal disclaimers in overcoming rejections under MPEP 715.05?...