When is a 37 CFR 1.131(a) affidavit appropriate in a patent application?

A 37 CFR 1.131(a) affidavit is appropriate when an applicant needs to antedate a reference cited against their patent application. Specifically, it’s used to show prior invention before the effective date of the cited reference.

According to MPEP 715.01: “An affidavit or declaration under 37 CFR 1.131(a) may be used, in the context of a pending application or reexamination proceeding, to overcome certain prior art which qualifies as prior art under pre-AIA 35 U.S.C. 102.”

Key points about when to use a 37 CFR 1.131(a) affidavit:

• It’s typically filed before final rejection
• It’s used to overcome references that qualify as prior art under pre-AIA 35 U.S.C. 102(a) or (e)
• It cannot be used to overcome statutory bars under pre-AIA 35 U.S.C. 102(b)

To learn more:

• 37 CFR 1.131(a)
• affidavits
• patent applications
• prior art
• antedate reference

To learn more:

• 37 CFR 1.131(a)