What happens to affidavits or declarations from a prior application when filing a continuation or divisional application?

Affidavits or declarations from a prior application do not automatically become part of a continuation or divisional application filed under 37 CFR 1.53(b). If an applicant wants to rely on these documents, they must take specific actions:

1. Make remarks of record in the new application referring to the affidavit or declaration.
2. Include a copy of the original affidavit or declaration filed in the prior application.

The MPEP states: Affidavits or declarations, such as those submitted under 37 CFR 1.130, 1.131 and 1.132 filed during the prosecution of the prior nonprovisional application do not automatically become a part of a continuation or divisional application filed under 37 CFR 1.53(b). Where it is desired to rely on an earlier filed affidavit or declaration, the applicant should make such remarks of record in the 37 CFR 1.53(b) application and include a copy of the original affidavit or declaration filed in the prior nonprovisional application.

It’s important to note that this rule doesn’t apply to continued prosecution applications (CPAs) filed under 37 CFR 1.53(d), where affidavits and declarations do automatically become part of the new application.

For more information on continuation application, visit: continuation application.

For more information on Divisional application, visit: Divisional application.