What is the diligence requirement for proving prior invention under 37 CFR 1.131(a)?

The diligence requirement is crucial when establishing prior invention under 37 CFR 1.131(a). MPEP 715.07(a) states:

Where conception occurs prior to the date of the reference, but reduction to practice is afterward, it is not enough merely to allege that the inventor or inventors had been diligent. Rather, applicant must show evidence of facts establishing diligence.

Key points about diligence include:

• Diligence is only considered after prior conception is clearly established.
• The critical period for showing diligence begins just prior to the effective date of the reference and ends with the date of reduction to practice (actual or constructive).
• An inventor is either diligent or not; there are no degrees of diligence.
• Lack of activity may be excused, but an explanation must be provided in the record.
• Diligence is judged based on the particular facts of each case.

The MPEP emphasizes: Note, therefore, that only diligence before reduction to practice is a material consideration. Any lack of due diligence between an actual reduction to practice of an invention and the filing of an application thereon is not relevant to the sufficiency of an affidavit or declaration under 37 CFR 1.131(a).

To learn more:

• diligence
• prior invention
• 37 CFR 1.131(a)
• conception
• reduction to practice

To learn more:

• 37 CFR 1.131(a)