What date must be overcome under 37 CFR 1.131?

Under 37 CFR 1.131, the critical date that needs to be overcome is the effective date of the reference. This provision allows an applicant to establish that their claimed invention was made before the effective date of a reference that may be cited against them, often in the context of a rejection based on prior art.

The effective date of a reference is significant because it indicates when the disclosure of that reference became prior art, thus impacting the patentability of the claimed invention. If the applicant can provide evidence showing that they conceived of or reduced to practice their invention before this effective date, this can potentially eliminate the prior art impact of the reference.

Understanding this concept is crucial for navigating patent prosecution, as applicants often must counter rejections based on prior art references by establishing an earlier date of invention or filing that predates the effective date of the cited reference. This strategic maneuver can help secure patent protection when faced with potentially detrimental prior art.