What is the difference between an affidavit under 37 CFR 1.131(a) and 37 CFR 1.132 in patent applications?
The key differences between affidavits under 37 CFR 1.131(a) and 37 CFR 1.132 in patent applications are: 37 CFR 1.131(a) affidavit: Used to antedate (show prior invention) a reference by proving invention before the effective date of the reference. 37 CFR 1.132 affidavit: Used to show that the relevant portions of the reference originated with…
Read MoreWhat is the difference between 37 CFR 1.131(a) and 37 CFR 1.132 affidavits in patent applications?
The main difference between 37 CFR 1.131(a) and 37 CFR 1.132 affidavits lies in their purpose and timing: 37 CFR 1.131(a) affidavits are used to antedate a reference by showing prior invention. They are typically filed before final rejection. 37 CFR 1.132 affidavits are used for various purposes, including showing unexpected results, commercial success, or…
Read MoreWhat date must be overcome in a 37 CFR 1.131(a) affidavit or declaration?
When filing an affidavit or declaration under 37 CFR 1.131(a), the date that must be overcome is the effective date of the reference being used in the rejection. The MPEP clearly states: The date to be overcome under 37 CFR 1.131(a) is the effective date of the reference (i.e., the date on which the reference…
Read MoreWhat is the critical period for showing diligence in patent applications?
The critical period for showing diligence in patent applications is defined in the MPEP as follows: Under 37 CFR 1.131(a), the critical period in which diligence must be shown begins just prior to the effective date of the reference or activity and ends with the date of a reduction to practice, either actual or constructive…
Read MoreWhat is the difference between ‘conception’ and ‘reduction to practice’ in a 37 CFR 1.131(a) affidavit?
In the context of a 37 CFR 1.131(a) affidavit, ‘conception’ and ‘reduction to practice’ are two distinct stages of invention: Conception is the formation in the inventor’s mind of a definite and permanent idea of the complete and operative invention. Reduction to practice can be either actual (physically creating the invention) or constructive (filing a…
Read MoreWhat types of evidence can be used to establish conception in a 37 CFR 1.131(a) affidavit?
When filing a 37 CFR 1.131(a) affidavit to establish conception of an invention, it’s crucial to provide sufficient evidence. The MPEP provides guidance on what constitutes acceptable evidence: While conception is the mental part of the inventive act, it must be capable of proof, such as by demonstrative evidence or by a complete disclosure to…
Read MoreCan an assignee or attorney sign an affidavit or declaration under 37 CFR 1.131(a)?
Can an assignee or attorney sign an affidavit or declaration under 37 CFR 1.131(a)? No, an assignee or attorney cannot sign an affidavit or declaration under 37 CFR 1.131(a). The MPEP 715.04 clearly states: “The affidavit or declaration must be signed by all of the inventors except as provided for in 37 CFR 1.131(a)(1). An…
Read MoreWhat is the general rule for antedating references for generic claims?
The general rule for antedating references for generic claims is that showing completion of a single species within the genus is usually sufficient. According to MPEP 715.02: A reference or activity applied against generic claims may (in most cases) be antedated as to such claims by an affidavit or declaration under 37 CFR 1.131(a) showing…
Read MoreHow does the America Invents Act (AIA) affect affidavits and declarations under 37 CFR 1.131(a)?
The America Invents Act (AIA) has significantly impacted the applicability of affidavits and declarations under 37 CFR 1.131(a): For applications subject to the first inventor to file provisions of the AIA, 37 CFR 1.131(a) is generally not applicable. These affidavits or declarations can still be used to overcome rejections under pre-AIA 35 U.S.C. 102(g). For…
Read MoreWhen is a 37 CFR 1.131(a) affidavit appropriate in a patent application?
A 37 CFR 1.131(a) affidavit is appropriate when an applicant needs to antedate a reference cited against their patent application. Specifically, it’s used to show prior invention before the effective date of the cited reference. According to MPEP 715.01: “An affidavit or declaration under 37 CFR 1.131(a) may be used, in the context of a…
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