How does a priority showing differ from a 37 CFR 1.131 affidavit?
A priority showing under 37 CFR 41.202(d) differs from a 37 CFR 1.131 affidavit in several key aspects:
- A 37 CFR 1.131 affidavit is typically used to overcome rejections under pre-AIA 35 U.S.C. 102(a) or 102(e).
- A priority showing is required when the reference has claims directed to the same patentable invention as the application claims being rejected.
- The MPEP states: “The reason for this exception is that priority is determined in an interference when the claims interfere. See pre-AIA 35 U.S.C. 135(a).”
In cases where interference is not possible (e.g., claims have been significantly modified or are not in condition for allowance), a 37 CFR 1.131 affidavit may be permitted instead of a priority showing.
To learn more:
Topics:
MPEP 2300 - Interference And Derivation Proceedings,
MPEP 2305 - Requiring A Priority Showing,
Patent Law,
Patent Procedure