When is a 37 CFR 1.131 affidavit not an acceptable method to overcome a pre-AIA 35 U.S.C. 102(e) rejection?
A 37 CFR 1.131 affidavit is not an acceptable method to overcome a pre-AIA 35 U.S.C. 102(e) rejection in certain circumstances. According to the MPEP: “When the claims of the reference U.S. patent or U.S. patent application publication and the application are directed to the same invention or are obvious variants, an affidavit or declaration…
Read MoreHow 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…
Read MoreWhat is the difference between a 37 CFR 1.131 affidavit and a 37 CFR 1.132 affidavit?
The main difference between a 37 CFR 1.131 affidavit and a 37 CFR 1.132 affidavit lies in their purpose and when they are appropriate to use: 37 CFR 1.131 affidavit: Used to antedate a reference by proving prior invention. It is appropriate when the reference describes an invention by someone other than the applicant. 37…
Read MoreHow can a 37 CFR 1.131 affidavit affect the on-sale bar determination?
A 37 CFR 1.131 affidavit, commonly used to swear behind a reference, can inadvertently affect the on-sale bar determination. The MPEP warns: Affidavits or declarations submitted under 37 CFR 1.131 to swear behind a reference may constitute, among other things, an admission that an invention was “complete” more than 1 year before the filing of…
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