Q) 37 CFR 1.131 (10.02.6a)

6. According to USPTO rules and procedure, which of the following can be overcome by an affidavit under 37 CFR 1.131?

(A) A rejection properly based on statutory double patenting. (B) A rejection properly made under 35 USC 102(d) based on a foreign patent granted in a non-WTO country. (C) A rejection properly made under 35 USC 102(a) based on a journal article dated one month prior to the effective filing date of the U.S. patent application. Applicant has clearly admitted on the record during the prosecution of the application that subject matter in the journal article relied on by the examiner is prior art. (D) A rejection properly made under 35 USC 102(b) based on a U.S. patent that issued 18 months before the effective filing date of the application. The patent discloses, but does not claim, the invention. (E) None of the above.

6. ANSWER: (E) is the correct answer. MPEP § 715. (A) is incorrect because an affidavit
under 37 C.F.R. § 1.131 is not appropriate where the reference is a prior U.S. patent to the same
entity, claiming the same invention. MPEP § 715. (B) and (D) are each incorrect because an
affidavit under 37 C.F.R. § 1.131 is not appropriate where the reference is a statutory bar under
35 U.S.C. § 102(d) as in (B) or a statutory bar under 35 U.S.C. § 102(b) as in (D). MPEP § 715.
(C) is incorrect because an affidavit under 37 C.F.R. § 1.131 is not appropriate where applicant
has clearly admitted on the record that subject matter relied on in the reference is prior art. MPEP
§ 715.