Antedating in patent law

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102(e) is not the foreign filing date to which the application for patent may have been entitled under 35 U. Therefore, the date to be overcome under 37 CFR 1.131(a) is the effective U. The requisite means themselves and their interaction must also be comprehended. Camran Nezhat, was already in possession of a draft application he received from his patent attorney on January 28, 1998.The application that issued as the ‘384 patent was filed on May 1, 1998. Nezhat testified that he was working approximately 80 hours per week at his medical practice and performing four to six surgeries each week.Reasonable diligence must be shown for the period of time just prior to the competing reference’s effective date and ending on the date of the invention’s reduction to practice. The Federal Circuit disagreed that he was required to show continuous exercise of reasonable diligence, but instead held that he must show reasonably continuous diligence.The purpose of this requirement “is to assure that, in light of the evidence as a whole, ‘the invention was not abandoned or unreasonably delayed.’” Slip Op. Under that standard, the court stated that an inventor is not required to work on reducing his invention to practice every day during the critical period and periods of inactivity do not automatically require a finding of no diligence.

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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.

See MPEP §§ 706.02(a), 706.02(f)(1), and 2136 - 2136.03. Foreign Patents See MPEP §§ 2126 through 2127 regarding date of availability of foreign patents as prior art. Printed Publications A printed publication, including a published foreign patent application, is effective as of its publication date, not its date of receipt by the publisher. An affidavit or declaration is inappropriate under 37 CFR 1.131(a) when the reference is claiming interfering subject matter as defined in 37 CFR 41.203(a), see MPEP Chapter 2300.

patent application publication of a pending or patented application that claims the rejected invention.

patent application publication, or WIPO publication of an international application as a reference under pre-AIA 35 U.

The effective date of a domestic patent when used as a reference in a rejection under pre-AIA 35 U.

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