What is the significance of the one-year time frame in MPEP 715.05?

This page is an FAQ based on guidance from the Manual of Patent Examining Procedure. It is provided as guidance, with links to the ground truth sources. This is information only: it is not legal advice.

The one-year time frame is crucial in determining how to overcome a reference in patent applications subject to pre-AIA 35 U.S.C. 102. According to MPEP 715.05:

“When the reference in question is a noncommonly owned U.S. patent or patent application publication claiming the same invention as applicant and its publication date is less than 1 year prior to the presentation of claims to that invention in the application being examined, applicant’s remedy, if any, must be by way of 37 CFR 41.202 instead of 37 CFR 1.131(a).”

This means that if the reference was published less than a year before the applicant’s claims, the applicant must initiate an interference proceeding rather than using an affidavit to overcome the reference.