Can an antedating affidavit be filed in pre-AIA practice without receiving a 102 rejection?

An antedating affidavit can indeed be filed in pre-AIA practice even if there is no initial 102 rejection. This provision allows a party to establish an earlier effective filing date for their claimed invention, which can be crucial in overcoming potential issues regarding prior art that may not have been formally cited yet.

In pre-AIA procedures, the timing and particulars of filing an antedating affidavit are such that the applicant is given the opportunity to assert earlier rights in anticipation of possible challenges. Thus, it affirms the principle that parties may wish to clarify and secure their positions regarding priority without the need to wait for a specific rejection based on § 102.

This option supports proactive strategies in patent prosecution, ensuring applicants can safeguard their innovation's validity irrespective of whether or not they have yet faced formal rejections based on prior art.