What is the role of affidavits in challenging the operability of a prior art reference?
What is the role of affidavits in challenging the operability of a prior art reference?
Affidavits can play a crucial role in challenging the operability of a prior art reference. According to MPEP 716.07, “Where the affidavit or declaration presented asserts inoperability in features of the reference which are not relied upon, the reference is still effective as to other features which are operative.” This means that:
- Affidavits can be used to assert that certain aspects of a prior art reference are inoperable.
- However, the reference may still be valid for other features that are not challenged or remain operative.
- The effectiveness of the affidavit depends on which specific features of the reference are being relied upon in the rejection.
It’s important to note that the mere presence of an affidavit does not automatically invalidate a reference. The examiner will evaluate the affidavit in the context of the entire prior art disclosure and the claims being examined.
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