Patent bar Pre-AIA novelty and statutory bars question: rejected under pre-AIA 102(a) over a journal article by others published on June

Patent barPre-AIA novelty and statutory bars

A pre-AIA application was filed on December 3, 2012, with no benefit or priority claim. Its claims are rejected under pre-AIA 102(a) over a journal article by others published on June 20, 2012. The inventor actually reduced the invention to practice in the United States in March 2012. Which reply is most appropriate?

A An argument that the article is a statutory bar that the applicant may ignore
B A declaration under 37 CFR 1.132 showing unexpected results over the article
C A Rule 131 declaration showing reduction to practice before June 20, 2012
D A request for an interference with the journal article's authors
E A declaration under 37 CFR 1.130(a) showing the article was the inventor's disclosure

Show the answer and explanation

Answer: C. A Rule 131 declaration showing reduction to practice before June 20, 2012

Answer: A Rule 131 declaration showing reduction to practice before June 20, 2012. The article is less than a year before the December 3, 2012 filing date, so it is pre-AIA 102(a) art only, not a 102(b) bar. Rule 131 lets the applicant antedate it by showing a reduction to practice before the reference date, or conception before it coupled with diligence to a later reduction to practice or filing (MPEP 715, 715.07). Why not the others: - Rule 130(a): that is the AIA attribution rule; this application is under pre-AIA law. - Rule 132 evidence: it rebuts obviousness or supports patentability, but cannot defeat anticipation by an earlier date. - A statutory bar: it is not a bar, and a bar could not be ignored anyway. - An interference: interferences are between applications or patents claiming the same invention, not with authors of an article. Rule: Pre-AIA 102(a) art less than a year before filing can be antedated under 37 CFR 1.131. Source: MPEP § 715, § 715.07 (9th ed., Rev. 01.2024); pre-AIA 35 U.S.C. 102(a); 37 CFR 1.131(a); as at Oct 2026

Common mistake

Using AIA Rule 130 in a pre-AIA application.

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Original study material written from the MPEP; not a question from the current exam.Independent. Not affiliated with or endorsed by the USPTO. Verify figures and rules against current guidance before relying on them.