What is the difference between a 1.130(a) and 1.130(b) declaration?

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 main difference between a 1.130(a) and 1.130(b) declaration lies in the type of exception they are used to establish:

• 1.130(a) declaration: Used to establish that the disclosure was made by the inventor or joint inventor, or the subject matter disclosed was obtained directly or indirectly from the inventor or a joint inventor.
• 1.130(b) declaration: Used to establish that the subject matter disclosed had been publicly disclosed 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, before the date of the reference or intervening disclosure.

As stated in MPEP 2155: “37 CFR 1.130(a) provides a mechanism for filing an affidavit or declaration to establish that a disclosure is not prior art in accordance with 35 U.S.C. 102(b)(1)(A) or 102(b)(2)(A). 37 CFR 1.130(b) provides a mechanism for filing an affidavit or declaration to establish that a disclosure is not prior art in accordance with 35 U.S.C. 102(b)(1)(B) or 102(b)(2)(B).”