I’m working on compiling the data from the recent survey on antedating prior art through the use of Rule 131 affidavits during patent prosecution. I have a question for practitioners on the current state of the dedication rule.
MPEP 715 reads as follows:
An affidavit or declaration under 37 CFR 1.131 is not appropriate . . . (F) Where the reference is the disclosure of a prior U.S. patent to the same party, not copending. The question is one of dedication to the public. Note however, In re Gibbs, 437 F.2d 486, 168 USPQ 578 (CCPA 1971) which substantially did away with the doctrine of dedication.
What is the current state of the law regarding later claiming material disclosed in earlier not-copending application?