What is the requirement for comparing claimed subject matter in an affidavit or declaration under 37 CFR 1.132?

An affidavit or declaration under 37 CFR 1.132 must compare the claimed subject matter with the closest prior art to effectively rebut a prima facie case of obviousness. As stated in MPEP 716.02(e):

“An affidavit or declaration under 37 CFR 1.132 must compare the claimed subject matter with the closest prior art to be effective to rebut a prima facie case of obviousness.”

This requirement ensures that the comparison is made against the most relevant existing technology, providing a more accurate assessment of the invention’s non-obviousness.

To learn more:

• 37 CFR 1.132
• affidavit
• declaration
• closest prior art
• prima facie obviousness

To learn more:

• 37 CFR 1.132