How can an applicant overcome a rejection based on prior use or knowledge under MPEP 715.01(d)?

MPEP 715.01(d) provides two main ways for an applicant to overcome a rejection based on prior use or knowledge:

1. Affidavit or declaration under 37 CFR 1.131(a):

   The MPEP states: “a rejection under pre-AIA 35 U.S.C. 102 or 103 based on an activity showing that the claimed invention was used or known prior to the filing date of the application may be overcome by an affidavit or declaration under 37 CFR 1.131(a) establishing a date of invention prior to the date of the activity.” This means the applicant can provide evidence that they invented the claimed invention before the date of the prior use or knowledge.

2. Affidavit or declaration under 37 CFR 1.132:

   As an alternative, the MPEP states: “Alternatively, the applicant(s) may overcome the rejection by filing a specific affidavit or declaration under 37 CFR 1.132 showing that the activity was performed by the inventor or at least one joint inventor.” This approach is used to show that the prior use or knowledge was actually the applicant’s own work.

Both methods require specific documentation and evidence to support the applicant’s claims.

To learn more:

• patent rejection
• affidavit
• declaration
• prior invention
• inventor’s own work