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 in the absence of a 102 rejection. This process allows a patent applicant to establish that their invention was in public use or on sale before the date of an asserted prior art reference, effectively negating the impact of that prior art on the patentability of the claimed invention.

The key principle behind this is that antedating affidavits serve as a mechanism for the patent applicant to assert the earlier date of invention or reduction to practice. This is a strategic move to overcome potential rejections based on prior art that might create issues concerning novelty or statutory bars. Therefore, the ability to submit an antedating affidavit is not contingent on having received a section 102 rejection, making it a useful tool for applicants who want to proactively support their applications regardless of the current state of art citations.

This clarity highlights the importance of understanding the mechanisms for defending patent claims under pre-AIA laws and reinforces the idea that certain procedural tools are available to applicants in protecting their innovations against prior disclosures or uses.