Can an affidavit or declaration under 37 CFR 1.131(a) be used to swear behind a U.S. patent or U.S. patent application publication?
An affidavit or declaration under 37 CFR 1.131(a) cannot be used to swear behind a U.S. patent or U.S. patent application publication that claims the rejected invention. The MPEP clearly states: ’37 CFR 1.131(a) is not available if the reference is a U.S. patent or U.S. patent application publication of a pending or patented application…
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