Q) 35 USC 102(a) Rejection (4.03.5p)

by admin on April 7, 2010 · 3 comments

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Recent test takers report question #5 from the April 2003 (pm) exam is in the Patent Bar database of tested questions.

5. Which of the following practices or procedures may be properly employed in accordance with the USPTO rules and the procedures set forth in the MPEP to overcome a rejection properly based on 35 USC 102(a)?
(A) Perfecting a claim to priority under 35 USC 119(a)-(d) based on a foreign application having a foreign priority filing date that antedates the reference.
(B) Filing a declaration under 37 CFR 1.131 showing that the cited prior art antedates the invention.
(C) Filing a declaration under 37 CFR 1.132 showing that the reference invention is by “others.”
(D) Perfecting priority under 35 USC 119(e) or 120 by, in part, amending the declaration of the application to contain a specific reference to a prior application having a filing date prior to the reference.
(E) (A), (B) (C), and (D).


ANSWER: (A) is the most correct answer. See MPEP § 706.02(b), under the heading “Overcoming a 35 U.S.C. § 102 Rejection Based on a Printed Publication or Patent.” (B), and (C) are incorrect because they present showings that support the rejection. See MPEP § 706.02(b), supra. (D) are not correct because to perfect priority under 35 U.S.C. §§ 119(e) or 120 it is, inter alia, necessary to amend the specification of the application to contain a specific reference to a prior application having a filing date prior to the reference. See MPEP § 706.02(b), supra. Furthermore, the declaration is not to be amended. (E) is incorrect because (B), (C) and (D) are incorrect.

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2 SolNo Gravatar April 1, 2012 at 7:14 pm

To elaborate on D:

Perfecting benefit under 35 U.S.C. 119(e) or 120, …
(1a) by amending the specification …
or
(1b) by filing an application data sheet under ….

(2) to contaitn a specific reference to a prior application…

(3) and by establishing that the prior application satisfies the enablement and written description requirements.

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