What factors are considered when evaluating a declaration 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.

When evaluating a declaration under 37 CFR 1.130(b), the USPTO considers several factors:

• Whether the disclosure is subject to the exceptions of 35 U.S.C. 102(b)(1)(B) or 102(b)(2)(B)
• Whether the affidavit shows sufficient facts to establish that the subject matter was publicly disclosed by the inventor or someone who obtained it from the inventor
• Whether the formal requirements of the declaration are met
• Whether the declaration is timely presented

The MPEP states: In evaluating whether a declaration under 37 CFR 1.130(b) is effective to disqualify a disclosure on which the rejection is based, Office personnel will consider the following criteria: (A) Whether the disclosure […] is subject to the exceptions of 35 U.S.C. 102(b)(1)(B) or 102(b)(2)(B). […] (B) Whether the affidavit or declaration shows sufficient facts […] (C) Whether the formal requirements of a declaration or affidavit are met. […] (D) Whether the affidavit or declaration is timely presented.