How does an inventor’s oath or declaration affect prior art rejections under 35 U.S.C. 102(e)?
An inventor’s oath or declaration can have a significant impact on prior art rejections under 35 U.S.C. 102(e). The MPEP states:
‘If the rejection is based on a U.S. patent or U.S. patent application publication of a different inventive entity which claims the same invention or an obvious variant, and there is at least one common inventor, the U.S. patent or U.S. patent application publication may be removed as prior art under pre-AIA 35 U.S.C. 102(e) by filing of an affidavit or declaration under 37 CFR 1.132 averring facts showing that the subject matter relied upon in the patent or published application was the inventor’s own work.’
This means that if an inventor can prove through an oath or declaration that the subject matter in the cited prior art was their own work, they may be able to overcome the rejection. It’s important to note that this applies to pre-AIA 35 U.S.C. 102(e) and requires specific facts to be presented in the affidavit or declaration.
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