Can a 37 CFR 1.130(a) declaration be used for all types of prior art?
No, a 37 CFR 1.130(a) declaration cannot be used for all types of prior art. It is specifically designed to address certain types of disclosures that fall within the exceptions under AIA 35 U.S.C. 102(b)(1)(A) or 102(b)(2)(A).
According to MPEP 717.01(a)(1):
The provisions of 37 CFR 1.130(a) are not available if the rejection is based upon a disclosure made more than one year before the effective filing date of the claimed invention. A declaration or affidavit filed under 37 CFR 1.130(a) is not appropriate in this situation since the disclosure is not subject to the exceptions of 35 U.S.C. 102(b)(1)(A) or 102(b)(2)(A).
This means that 37 CFR 1.130(a) declarations are primarily useful for:
- Disclosures made within one year of the effective filing date
- Disclosures that can be attributed to the inventor or obtained from the inventor
They cannot be used to overcome rejections based on older prior art or art that is not derived from the inventor’s work.
To learn more:
- 37 CFR 1.130(a)
- prior art
- AIA 35 U.S.C. 102(b)(1)(A)
- AIA 35 U.S.C. 102(b)(2)(A)
- declaration limitations
To learn more: