Today we had an entire class devoted to 102(e) and figuring out the 102(e) date of a reference based on where and when it was filed. It seemed like an odd placement for the class, since we’ve already covered 102 rejections, and we’ve presumably been using them for the past couple of months. At any rate, the point of the class was mostly to cover the trickier scenarios that arise due to foreign filings.
Our second lecture was on 131 affidavits, which are used when an applicant is trying to swear behind a reference. For those who don’t know what I’m talking about: when examiners find prior art and use it to reject a patent application, there are several subsections of law that govern what qualifies as prior art, and how an applicant might respond to the rejection. 102(a) and 102(e) can be “sworn behind.” That is, applicant can submit evidence that he or she actually invented the claimed invention some time prior to the date of the references the examiner supplied. 102(b) and 102(d) are statutory bars, which means that applicant cannot get around the rejection by proving he invented it earlier.
Of course, swearing behind a reference is more complicated than that, which is why we had a class covering the basics of what should be submitted for applicant to prove his assertion. Tomorrow: more class.