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

Question

Accepted Answer

Source: FAQ (MPEP-Based) BlueIron Update: 2024-09-10 10 Rules 5 Related FAQs 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. 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) Related Rules from the Manual of Patent Examining Procedure 10 rules Collapse Affidavit or Declaration Under 37 CFR 1.131(a) Must Follow Form Paragraph 7.57.fti MPEP 715 Required Affidavit or Declaration Under 37 CFR 1.131(a) Must Follow Form Paragraph 7.57.fti MPEP 715 Required Affidavit or Declaration Under 37 CFR 1.131(a) Must Follow Specific Form MPEP 715 Required Date to Overcome Prior Art Is Effective Date MPEP 715 Affidavit or Declaration to Overcome Prior Art Rejection MPEP 715 Permitted Patent Application Publications as Prior Art MPEP 715 Permitted Admissions of Prior Art Cannot Be Overcome by Affidavit MPEP 715 Prohibited Effective Date for Swearing Behind a Reference Must Be Known Date MPEP 715 Lost Count Not Prior Art Under Pre-AIA 102(g) MPEP 715 Prohibited Effective Date for Continuation References Determined Under Pre-AIA 102(e) MPEP 715 Other Related FAQs 5 FAQs Collapse How can an applicant overcome prior art rejections using a 37 CFR ...