What is the purpose of an affidavit or declaration under 37 CFR 1.131(a)?

An affidavit or declaration under 37 CFR 1.131(a) serves to overcome a cited prior art reference by establishing that the inventor(s) completed the invention before the effective date of the reference. The MPEP states:

‘The purpose of a 37 CFR 1.131(a) affidavit or declaration is to overcome a prior art rejection under pre-AIA 35 U.S.C. 102 or 103 by proving invention of the claimed subject matter by the inventor or at least one joint inventor prior to the effective date of the reference or activity relied upon in the rejection.’

This process is often referred to as ‘swearing behind’ a reference, as it allows the applicant to establish an earlier date of invention than the cited prior art.

To learn more:

• affidavit
• declaration
• 37 CFR 1.131(a)
• swearing behind
• prior art

To learn more:

• 37 CFR 1.131(a)
• prior art rejection