What are the limitations of 37 CFR 1.131(a) affidavits in patent applications?

While 37 CFR 1.131(a) affidavits are useful for antedating certain prior art references, they have several important limitations:

1. Statutory Bars: As stated in MPEP 715.01, “An affidavit or declaration under 37 CFR 1.131(a) is not appropriate where the reference is a statutory bar under pre-AIA 35 U.S.C. 102(b).”
2. AIA Applications: These affidavits are not applicable to applications subject to the first-inventor-to-file provisions of the AIA.
3. Scope: They can only be used to overcome certain types of prior art under pre-AIA 35 U.S.C. 102(a) or (e).
4. Timing: They are typically filed before final rejection and may not be entered after final rejection without good and sufficient reason.
5. Evidence Required: The affidavit must provide sufficient evidence of prior invention, which can be challenging to produce.

It’s important to consult with a patent attorney to determine if a 37 CFR 1.131(a) affidavit is appropriate and sufficient for your specific case.

To learn more:

• 37 CFR 1.131(a)
• affidavits
• patent applications
• limitations
• statutory bars

To learn more:

• 37 CFR 1.131(a)