Can a 37 CFR 1.131(a) affidavit or declaration be used against all types of prior art?

No, a 37 CFR 1.131(a) affidavit or declaration cannot be used against all types of prior art. The MPEP clearly outlines the limitations:

’37 CFR 1.131(a) affidavits or declarations can be overcome by references that fall under 35 U.S.C. 102(b) or 102(d).’

This means that an affidavit or declaration under 37 CFR 1.131(a) cannot be used to overcome:

• Prior art that qualifies under 35 U.S.C. 102(b) (public use or on sale more than one year before the application filing date)
• Prior art that qualifies under 35 U.S.C. 102(d) (foreign patents filed more than 12 months before the U.S. filing date)
• Statutory bars
• Activities or publications by the inventor or joint inventors more than one year before the effective filing date

It’s important to note that the affidavit or declaration is primarily used to overcome rejections based on prior art that falls within the one-year grace period before the effective filing date of the claimed invention.

To learn more:

• 37 CFR 1.131(a)
• affidavit
• declaration
• prior art limitations
• 35 U.S.C. 102(b)
• 35 U.S.C. 102(d)

To learn more:

• 37 CFR 1.131(a)
• 35 U.S.C. 102(b)
• 35 U.S.C. 102(d)