How does the AIA affect 37 CFR 1.131 affidavits in patent applications?
How does the AIA affect 37 CFR 1.131 affidavits in patent applications?
The America Invents Act (AIA) has significantly impacted the use of 37 CFR 1.131 affidavits in patent applications. According to MPEP 715.01(a):
“For applications subject to current 35 U.S.C. 102, affidavits or declarations under 37 CFR 1.131(a) are not available to overcome a rejection under 35 U.S.C. 102(a)(2).”
This change means that for applications filed on or after March 16, 2013 (subject to the AIA), 1.131 affidavits cannot be used to overcome rejections based on U.S. patents, U.S. patent application publications, or WIPO publications of international applications that name another inventor and have an earlier effective filing date. Instead, applicants must use other means, such as showing prior public disclosure or invoking an exception under 35 U.S.C. 102(b)(2), to overcome such rejections.
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