When is a declaration under 37 CFR 1.130(a) not available?

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.

A declaration under 37 CFR 1.130(a) is not available in the following situations:

1. If the disclosure was made more than one year before the effective filing date of the claimed invention.
2. When the disclosure is a U.S. patent or U.S. patent application publication that claims an invention substantially the same as the applicant’s, and the affidavit contends that an inventor named in the U.S. patent or publication derived the invention from the applicant’s inventor.

The MPEP clarifies: The provision of 37 CFR 1.130(a) is not available: (1) If the disclosure was made (e.g., patented, described in a printed publication, or in public use, on sale, or otherwise available to the public) more than one year before the effective filing date of the claimed invention.