What is the significance of the invention date in MPEP 715.01(d)?
The invention date plays a crucial role in overcoming certain rejections under MPEP 715.01(d). According to the section:
“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 that if an applicant can prove they invented the claimed invention before the date of the prior art or activity cited against them, they may be able to overcome the rejection. The invention date becomes the critical date for comparison, rather than the filing date of the application.
To establish the invention date, applicants must provide evidence through an affidavit or declaration under 37 CFR 1.131(a). This evidence typically includes documentation of conception of the invention and diligence in reducing it to practice or actual reduction to practice.
It’s important to note that this approach is mainly applicable to pre-AIA (first-to-invent) applications. For AIA (first-inventor-to-file) applications, different rules apply, as outlined in MPEP § 717.
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