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Swearing Back:
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Swearing back can be used for:
- A rejection under pre-AIA 35 U.S.C. 102(a) based on a journal article that describes the invention as claimed.
- A rejection under pre-AIA 35 U.S.C. 102(e) based on a patent that discloses but does not claim the same patentable invention.
- A reference with a patent issue date less than one year prior to the applicant’s effective filing date, showing but not claiming the same patentable invention.
- The date of foreign patent or publication is less than 1 year prior to applicant's effective filing date.
The date to overcome is the effective U.S. filing date, not the foreign priority date.
Printed publications are effective as of the publication date, not the date of receipt by the publisher.
The lapse of time between the completion or reduction to practice of an invention and the filing of an application thereon is not relevant to an affidavit or declaration under 37 C.F.R. 1.131.
After conception has clearly been established, diligence must be considered prior to the establishment of the effective date.
