MPEP § 715.07(b) — Interference Testimony Sometimes Used
Ninth Edition, Revision 01.2024 · last revised R-08.2017
[Editor Note: This MPEP section is not applicable to applications subject to the first inventor to file provisions of the AIA unless being relied upon to overcome a rejection under pre-AIA 35 U.S.C. 102(g). See 35 U.S.C. 100 (note) and MPEP § 2159. For a discussion of 37 CFR 1.130, affidavits or declarations of attribution or prior public disclosure in applications subject to the first inventor to file provisions of the AIA, see MPEP § 717. For a discussion of affidavits or declarations under 37 CFR 1.131(c), see MPEP § 718.]
In place of an affidavit or declaration the testimony in an interference may be sometimes used to antedate a reference in lieu of a 37 CFR 1.131(a) affidavit or declaration.
The part of the testimony to form the basis of priority over the reference should be pointed out. Ex parte Bowyer, 1939 C.D. 5, 42 USPQ 526 (Comm’r Pat. 1939).
Cited authority
- 35 U.S.C. 102 (pre-AIA) Conditions for patentability; novelty and loss of right to patent
- 35 U.S.C. 100 (note) AIA First inventor to file provisions
- 2159 Applicability Date Provisions and Determining Whether an Application Is Subject to the First Inventor To File Provisions of the AIA
- 37 CFR 1.130 Affidavit or declaration of attribution or prior public disclosure under the Leahy-Smith America Invents Act
- 717 Prior Art Exceptions under AIA 35 U.S.C. 102(b)(1) and (2)
- 37 CFR 1.131 Affidavit or declaration of prior invention or to disqualify commonly owned patent or published application as prior art
- 718 Affidavit or Declaration to Disqualify Commonly Owned Patent as Prior Art, 37 CFR 1.131(c)