How does the AIA affect the use of 37 CFR 1.131 affidavits for NAFTA/WTO acts?
How does the AIA affect the use of 37 CFR 1.131 affidavits for NAFTA/WTO acts?
The America Invents Act (AIA) has significantly impacted the use of 37 CFR 1.131 affidavits, including those relying on acts in NAFTA/WTO countries. The MPEP 715.07(c) notes:
“The provisions of 35 U.S.C. 104, as in effect on March 15, 2013, apply only to applications subject to the current 35 U.S.C. 102. For applications subject to examination under the first to file provisions of the AIA, 35 U.S.C. 100(i)(1)(B) defines effective filing date for claimed inventions to include the filing date of a prior foreign application under certain conditions.”
This means that for applications filed on or after March 16, 2013 (subject to AIA provisions):
- The concept of swearing behind a reference using a 37 CFR 1.131 affidavit is largely eliminated.
- Instead of relying on invention dates, the effective filing date of the application becomes crucial.
- Foreign priority dates can now serve as the effective filing date under certain conditions.
Inventors and patent practitioners should be aware of these changes when considering strategies to overcome prior art references, especially for applications with international aspects.
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