How does an examiner determine if a pre-AIA 35 U.S.C. 102(d) rejection is appropriate?
An examiner determines if a pre-AIA 35 U.S.C. 102(d) rejection is appropriate by discovering a foreign patent or inventor’s certificate that meets the statutory requirements. The MPEP states: “If such a foreign patent or inventor’s certificate is discovered by the examiner, the rejection is made under pre-AIA 35 U.S.C. 102(d) on the ground of statutory…
Read MoreWhat types of documents can be used for a pre-AIA 35 U.S.C. 102(d) rejection?
For a pre-AIA 35 U.S.C. 102(d) rejection, only specific types of documents can be used. The MPEP clearly states: “The document must be a patent or inventor’s certificate and not merely a published or laid open application.“ This means that only granted patents or inventor’s certificates can serve as the basis for a pre-AIA 35…
Read MoreWhat is a statutory bar in the context of MPEP 715.01(d)?
While MPEP 715.01(d) doesn’t explicitly define a statutory bar, it mentions it as an exception to when certain rejections can be overcome. The section states: “Unless it is a statutory bar, a rejection under pre-AIA 35 U.S.C. 102 or 103 based on an activity showing that the claimed invention was used or known prior to…
Read MoreCan a 37 CFR 1.131(a) affidavit be used to overcome a statutory bar?
No, a 37 CFR 1.131(a) affidavit or declaration cannot be used to overcome a statutory bar. This limitation is explicitly stated in MPEP 715: An affidavit or declaration under 37 CFR 1.131(a) is not appropriate where the reference is a statutory bar under pre-AIA 35 U.S.C. 102(b) because no affidavit or declaration can be used…
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