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It should be kept in mind that it is the rejection that is withdrawn and not the reference. SITUATIONS WHERE 37 CFR 1.131 AFFIDAVITS OR DECLARATIONS CAN BE USED Affidavits or declarations under 37 CFR 1.131 may be used to overcome rejections in applications subject to pre-AIA 35 U. Acts occurring prior to the effective dates of NAFTA or URAA may be relied upon to show completion of the invention; however, a date of completion of the invention may not be established under 37 CFR 1.131(a) before December 8, 1993, in a NAFTA country or before January 1, 1996, in a WTO country other than a NAFTA country, in applications subject to pre-AIA 35 U. In addition, patent application publications and certain international application publications having an effective prior art date prior to the application being examined may be used in a rejection of the claims. Such a rejection may be overcome, in certain instances noted below, by filing of an affidavit or declaration under 37 CFR 1.131(a), known as “swearing behind” the reference. 102, and to overcome rejections under pre-AIA 35 U. In support of this attempt, Patent Owner argued that the claimed invention was conceived before the earliest effective filing date of Dezonno (April 21, 1995), and was subject to a constructive reduction to practice via the application from which the ’836 patent issued being filed on August 9, 1995, and an actual reduction to practice on August 15, 1995. The Board concluded that Patent Owner did not provide sufficient evidence to corroborate the inventor’s testimony that there was reasonable diligence continuously exercised during the entire critical period.Patent Owner also argued that reasonable diligence was exercised in the critical period from April 20, 1995 through August 9, 1995. In particular, the Board found that Patent Owner’s evidence did not sufficiently demonstrate the inventor’s diligence with regard to constructive reduction to practice or actual reduction to practice. 112, first paragraph, in order to give that subject matter the benefit of the earlier filing date under pre-AIA 35 U. S., and had been published in English under PCT Article 21(2) ) for the earlier international filing date to be a U. filing date for prior art purposes under pre-AIA 35 U.
Patent Owner attempted to antedate the Dezonno reference, which forms a part of each proposed ground of rejection.
For a discussion of affidavits or declarations under 37 CFR 1.131(c), see MPEP § 718.] Under 37 CFR 1.131(a) which provides for the establishment of a date of completion of the invention in a NAFTA or WTO member country, as well as in the United States, an applicant or patent owner can establish a date of completion in a NAFTA member country on or after December 8, 1993, the effective date of section 331 of Public Law 103-182, the North American Free Trade Agreement Act, and can establish a date of completion in a WTO member country other than a NAFTA member country on or after January 1, 1996, the effective date of section 531 of Public Law 103-465, the Uruguay Round Agreements Act (URAA). Any printed publication or activity dated prior to an applicant’s or patent owner’s effective filing date, or any domestic patent of prior filing date, which is in its disclosure pertinent to the claimed invention, is available for use by the examiner as a reference in the rejection of the claims of the application or patent under reexamination.