How can an applicant show that a disclosure was made by the inventor before an intervening disclosure?

This page is an FAQ based on guidance from the Manual of Patent Examining Procedure. It is provided as guidance, with links to the ground truth sources. This is information only: it is not legal advice.

To show that a disclosure was made by the inventor before an intervening disclosure, the applicant must provide evidence that establishes the inventor’s prior public disclosure. The MPEP 2155.02 outlines several ways this can be done:

• An affidavit or declaration under 37 CFR 1.130(b) can be used to attribute the subject matter disclosed to the inventor or a joint inventor.
• The affidavit or declaration must identify the subject matter publicly disclosed and provide the date of the public disclosure of such subject matter by the inventor or a joint inventor.
• If the subject matter publicly disclosed on the earlier date by the inventor or a joint inventor is not in a printed publication, the affidavit or declaration must describe the subject matter with sufficient detail and particularity.

The MPEP states: “Such an affidavit or declaration must identify the subject matter publicly disclosed and establish the date and content of their earlier public disclosure.” This evidence is crucial in establishing the inventor’s prior disclosure and disqualifying the intervening disclosure as prior art.