Can 37 CFR 1.131(c) be used to disqualify anticipatory prior art?
No, 37 CFR 1.131(c) cannot be used to disqualify anticipatory prior art. The MPEP clearly states:
A U.S. patent or U.S. patent application publication that anticipates the claimed subject matter cannot be disqualified as prior art under pre-AIA 35 U.S.C. 103(c) or 37 CFR 1.131(c).
This means that if a U.S. patent or U.S. patent application publication fully discloses the claimed invention (i.e., anticipates it under 35 U.S.C. 102), it cannot be disqualified using the procedure outlined in 37 CFR 1.131(c). This provision is specifically designed for situations where the rejection is based on obviousness (35 U.S.C. 103) rather than anticipation.
It’s important for applicants and patent practitioners to understand this limitation when considering strategies to overcome prior art rejections.
To learn more:
To learn more: