[Editor Note: This MPEP section is not applicable to applications subject to the first inventor to file provisions of the AIA unless being relied upon to overcome a rejection under pre-AIA 35 U.S.C. 102(g). See 35 U.S.C. 100 (note) and MPEP § 2159. For a discussion of 37 CFR 1.130, affidavits or declarations of attribution or prior public disclosure in applications subject to the first inventor to file provisions of the AIA, see MPEP § 717. For a discussion of affidavits or declarations under 37 CFR 1.131(c), see MPEP § 718.]
In place of an affidavit or declaration the testimony in an interference may be sometimes used to antedate a reference in lieu of a 37 CFR 1.131(a) affidavit or declaration.
The part of the testimony to form the basis of priority over the reference should be pointed out. Ex parte Bowyer, 1939 C.D. 5, 42 USPQ 526 (Comm’r Pat. 1939).