What is the purpose of an affidavit or declaration under 37 CFR 1.130(b)?

An affidavit or declaration under 37 CFR 1.130(b), also known as an affidavit or declaration of prior public disclosure, serves to except an intervening disclosure as prior art. It can be used when:

1. The subject matter disclosed had been publicly disclosed by the inventor or joint inventor before the intervening disclosure was made or effectively filed.
2. The subject matter disclosed had been publicly disclosed by another who obtained the subject matter directly or indirectly from the inventor or joint inventor before the intervening disclosure was made or effectively filed.

This type of affidavit or declaration is particularly useful for overcoming prior art that falls within the 1-year grace period before the effective filing date of the claimed invention.

As stated in the MPEP: Under 37 CFR 1.130(b), an affidavit or declaration of prior public disclosure may be submitted to except an intervening disclosure as prior art if the subject matter disclosed had, before such disclosure was made or before such subject matter was effectively filed in a U.S. patent, U.S. patent application publication, or WIPO published application, been publicly disclosed by the inventor or a joint inventor or another who obtained the subject matter disclosed directly or indirectly from the inventor or a joint inventor.

To learn more:

• 37 CFR 1.130(b)
• affidavit of prior public disclosure
• declaration of prior public disclosure
• intervening disclosure
• AIA
• America Invents Act