When is an affidavit or declaration under 37 CFR 1.131(a) not appropriate?

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.

An affidavit or declaration under 37 CFR 1.131(a) is not appropriate in several situations, including:

• When the reference is claiming interfering subject matter as defined in 37 CFR 41.203(a)
• When the reference is a statutory bar under pre-AIA 35 U.S.C. 102(b)

The MPEP states: An affidavit or declaration under 37 CFR 1.131(a) is not appropriate in the following situations: clearly [Note: The full list is not provided in the given excerpt]

In cases where the reference claims interfering subject matter, the MPEP advises: If the reference and this application are not commonly owned, the reference can only be overcome by establishing priority of invention through interference proceedings.