How can an applicant show that the subject matter was previously publicly disclosed?

An applicant can show that the subject matter was previously publicly disclosed by the inventor or a joint inventor before the disclosure or effective filing date of the subject matter on which the rejection was based by submitting an affidavit or declaration under 37 CFR 1.130(b).

According to the MPEP: An applicant may show that the subject matter disclosed had been publicly disclosed by the inventor or a joint inventor before the disclosure or effective filing date of the subject matter on which the rejection was based by way of an affidavit or declaration under 37 CFR 1.130(b) (an affidavit or declaration of prior public disclosure).

The affidavit or declaration must:

• Identify the subject matter publicly disclosed
• Establish the date and content of the earlier public disclosure
• If the earlier disclosure was a printed publication, include a copy of the publication
• If not a printed publication, describe the disclosure with sufficient detail and particularity

To learn more:

• affidavit
• declaration
• prior public disclosure
• 37 CFR 1.130(b)