Can an affidavit under MPEP 715.01(a) overcome a double patenting rejection?

An affidavit filed under MPEP 715.01(a) is primarily intended to overcome prior art rejections under 35 U.S.C. 102(e). However, it’s important to note that such an affidavit may not be sufficient to overcome a double patenting rejection. The MPEP states:

‘Note that subject matter which is prior art under 35 U.S.C. 102(f) or (g) is not disqualified as prior art under 35 U.S.C. 103(c) even though it was obtained from an inventor or joint inventor of the subject matter of the application under consideration.’

This means that while an affidavit can potentially remove a reference as prior art under 35 U.S.C. 102(e), it does not necessarily address issues related to double patenting. Double patenting rejections are based on the principle that an inventor should not receive multiple patents for the same invention or obvious variations thereof. To overcome a double patenting rejection, a terminal disclaimer is typically required, rather than an affidavit under 37 CFR 1.132.

To learn more:

• affidavit
• double patenting
• MPEP 715.01(a)
• prior art
• terminal disclaimer

To learn more:

• MPEP 715.01(a)