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

Applicants can establish that a disclosure is not prior art under AIA 35 U.S.C. 102(b) by filing an affidavit or declaration. The MPEP provides guidance on this process:

The Office has provided a mechanism in 37 CFR 1.130 for filing an affidavit or declaration to establish that a disclosure made no earlier than one year before the effective filing date of the claimed invention is not prior art under 35 U.S.C. 102(a) due to an exception in 35 U.S.C. 102(b).

This affidavit or declaration can be used to:

• Establish that the disclosure was made by the inventor or joint inventor (37 CFR 1.130(a))
• Establish that the subject matter disclosed was obtained directly or indirectly from the inventor or a joint inventor (37 CFR 1.130(a))
• Establish that the subject matter disclosed had been publicly disclosed by the inventor or a joint inventor before the disclosure being relied upon as prior art (37 CFR 1.130(b))

For more detailed information on filing these affidavits or declarations, refer to MPEP § 717.01 et seq.

To learn more:

• AIA
• 35 U.S.C. 102(b)
• affidavit
• declaration
• 37 CFR 1.130
• prior art exceptions

To learn more:

• 35 U.S.C. 102(b)
• 37 CFR 1.130