How does the USPTO evaluate declarations under 37 CFR 1.130(b)?

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.

The United States Patent and Trademark Office (USPTO) evaluates declarations under 37 CFR 1.130(b) based on specific criteria outlined in MPEP 717.01(b)(1). The evaluation process includes:

1. Timeliness: The declaration must be filed within the time periods set in 37 CFR 1.130(b).
2. Completeness: The declaration must contain all required information and statements.
3. Corroboration: The USPTO assesses whether the declaration is sufficiently corroborated, especially for facts not likely to be known by the examiner.
4. Comparison with prior art: The examiner compares the subject matter identified in the declaration with that in the prior art reference.

The MPEP states:

“The evidence necessary to show that the disclosure is 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 requires an affidavit or declaration under 37 CFR 1.130(b).”

If the declaration satisfies these criteria and effectively establishes that the disclosure was made by or derived from the inventor, it can be used to disqualify the prior art reference under AIA 35 U.S.C. 102(b)(1)(A).