How can an applicant establish that a disclosure is not prior art under AIA 35 U.S.C. 102(a)(2)?

This page is an FAQ based on guidance from the Manual of Patent Examining Procedure. It is provided as guidance, with links to the ground truth sources. This is information only: it is not legal advice.

An applicant can establish that a disclosure is not prior art under AIA 35 U.S.C. 102(a)(2) by using an affidavit or declaration. The MPEP states:

Thus, if the subject matter in a U.S. patent document upon which the rejection is based is by another who obtained the subject matter from the inventor or a joint inventor, the applicant may establish by way of an affidavit or declaration that a disclosure is not prior art under AIA 35 U.S.C. 102(a)(2).

The affidavit or declaration should show that the disclosure was by another who obtained the subject matter directly or indirectly from the inventor or a joint inventor. For more detailed information on using affidavits or declarations, the MPEP directs readers to MPEP § 2155.03.