MPEP § 717.01(b) — Declarations or Affidavits under 37 CFR 1.130(b) – Prior Public Disclosure (Annotated Rules)

§717.01(b) Declarations or Affidavits under 37 CFR 1.130(b) – Prior Public Disclosure

USPTO MPEP version: BlueIron's Update: 2025-12-31

This page consolidates and annotates all enforceable requirements under MPEP § 717.01(b), including statutory authority, regulatory rules, examiner guidance, and practice notes. It is provided as guidance, with links to the ground truth sources. This is information only, it is not legal advice.

Declarations or Affidavits under 37 CFR 1.130(b) – Prior Public Disclosure

This section addresses Declarations or Affidavits under 37 CFR 1.130(b) – Prior Public Disclosure. Primary authority: 35 U.S.C. 102(b)(1), 35 U.S.C. 102(b)(1)(B), and 35 U.S.C. 102(a)(1). Contains: 1 prohibition, 1 permission, and 1 other statement.

Key Rules

Topic

Effectively Filed Date for 102(a)(2)

2 rules
StatutoryPermittedAlways
[mpep-717-01-b-a1c03b12cfadb7c992616133]
Disclosure Must Be Publicly Disclosed by Inventor
Note:
When a claim is rejected, the applicant can submit an affidavit to disqualify a disclosure as prior art if it was publicly disclosed by the inventor or someone who obtained it from the inventor.

37 CFR 1.130(b) provides that when any claim of an application or a patent under reexamination is rejected, the applicant or patent owner may submit an appropriate affidavit or declaration to disqualify a disclosure as prior art by establishing that the subject matter disclosed had, before such disclosure was made or before such subject matter was effectively filed, 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. 37 CFR 1.130(b) pertains to the provisions of subparagraph (B) of 35 U.S.C. 102(b)(1) and 102(b)(2). 35 U.S.C. 102(b)(1)(B) provides that a disclosure made one year or less before the effective filing date of a claimed invention shall not be prior art to the claimed invention under 35 U.S.C. 102(a)(1) if the subject matter disclosed had, before such disclosure, 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. 35 U.S.C. 102(b)(2)(B) provides that a disclosure shall not be prior art to a claimed invention under 35 U.S.C. 102(a)(2) if the subject matter disclosed had, before such subject matter was effectively filed under 35 U.S.C. 102(a)(2), 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.

Jump to MPEP Source · 37 CFR 1.130(b)Effectively Filed Date for 102(a)(2)Prior Art Under 102(a)(2) – Earlier Filed Applications (MPEP 2154)Novelty / Prior Art
StatutoryProhibitedAlways
[mpep-717-01-b-29c5638b20fc1f94f75a4568]
Public Disclosure by Inventor Not Prior Art
Note:
A disclosure made within one year of the effective filing date is not prior art if publicly disclosed by the inventor or a joint inventor.

37 CFR 1.130(b) provides that when any claim of an application or a patent under reexamination is rejected, the applicant or patent owner may submit an appropriate affidavit or declaration to disqualify a disclosure as prior art by establishing that the subject matter disclosed had, before such disclosure was made or before such subject matter was effectively filed, 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. 37 CFR 1.130(b) pertains to the provisions of subparagraph (B) of 35 U.S.C. 102(b)(1) and 102(b)(2). 35 U.S.C. 102(b)(1)(B) provides that a disclosure made one year or less before the effective filing date of a claimed invention shall not be prior art to the claimed invention under 35 U.S.C. 102(a)(1) if the subject matter disclosed had, before such disclosure, 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. 35 U.S.C. 102(b)(2)(B) provides that a disclosure shall not be prior art to a claimed invention under 35 U.S.C. 102(a)(2) if the subject matter disclosed had, before such subject matter was effectively filed under 35 U.S.C. 102(a)(2), 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.

Jump to MPEP Source · 37 CFR 1.130(b)Effectively Filed Date for 102(a)(2)Prior Art Under 102(a)(2) – Earlier Filed Applications (MPEP 2154)Novelty / Prior Art
Topic

AIA vs Pre-AIA Practice

1 rules
StatutoryInformativeAlways
[mpep-717-01-b-fd9bbbf37713622bb77b52e9]
First Inventor to File Provision
Note:
This rule applies to applications subject to the first inventor to file provisions of the AIA, as opposed to pre-AIA practices.

[Editor Note: This MPEP section is only applicable to applications subject to the first inventor to file provisions of the AIA. See 35 U.S.C. 100 (note) and MPEP § 2159. For applications subject to pre-AIA 35 U.S.C. 102 and pre-AIA 35 U.S.C. 103, see MPEP § 716.10 for affidavits or declarations of attribution under 37 CFR 1.132.]

Jump to MPEP Source · 37 CFR 1.132AIA vs Pre-AIA PracticeObviousness Under AIA (MPEP 2158)Obviousness Under Pre-AIA (MPEP 2141-2146)
Topic

Obviousness Under AIA (MPEP 2158)

1 rules
StatutoryInformativeAlways
[mpep-717-01-b-75affdf4ba2a8f63f5d82568]
Affidavits or Declarations Required for Pre-AIA Applications
Note:
For pre-AIA applications, affidavits or declarations of attribution under 37 CFR 1.132 must be submitted as required.

[Editor Note: This MPEP section is only applicable to applications subject to the first inventor to file provisions of the AIA. See 35 U.S.C. 100 (note) and MPEP § 2159. For applications subject to pre-AIA 35 U.S.C. 102 and pre-AIA 35 U.S.C. 103, see MPEP § 716.10 for affidavits or declarations of attribution under 37 CFR 1.132.]

Jump to MPEP Source · 37 CFR 1.132Obviousness Under AIA (MPEP 2158)Obviousness Under Pre-AIA (MPEP 2141-2146)AIA vs Pre-AIA Practice
Topic

35 U.S.C. 102 – Novelty / Prior Art

1 rules
StatutoryInformativeAlways
[mpep-717-01-b-68260f77ec29535f18a286a3]
Affidavits to Disqualify Prior Art Under 35 U.S.C. 102(b)(1) and (b)(2)
Note:
Applicants may submit affidavits or declarations to disqualify certain disclosures as prior art under 35 U.S.C. 102(b)(1) and (b)(2) by showing the subject matter was publicly disclosed before such disclosure.

37 CFR 1.130(b) provides that when any claim of an application or a patent under reexamination is rejected, the applicant or patent owner may submit an appropriate affidavit or declaration to disqualify a disclosure as prior art by establishing that the subject matter disclosed had, before such disclosure was made or before such subject matter was effectively filed, 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. 37 CFR 1.130(b) pertains to the provisions of subparagraph (B) of 35 U.S.C. 102(b)(1) and 102(b)(2). 35 U.S.C. 102(b)(1)(B) provides that a disclosure made one year or less before the effective filing date of a claimed invention shall not be prior art to the claimed invention under 35 U.S.C. 102(a)(1) if the subject matter disclosed had, before such disclosure, 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. 35 U.S.C. 102(b)(2)(B) provides that a disclosure shall not be prior art to a claimed invention under 35 U.S.C. 102(a)(2) if the subject matter disclosed had, before such subject matter was effectively filed under 35 U.S.C. 102(a)(2), 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.

Jump to MPEP Source · 37 CFR 1.130(b)Novelty / Prior ArtEffectively Filed Date for 102(a)(2)Prior Art Under 102(a)(2) – Earlier Filed Applications (MPEP 2154)

Citations

Primary topicCitation
AIA vs Pre-AIA Practice
Obviousness Under AIA (MPEP 2158)
35 U.S.C. § 100
AIA vs Pre-AIA Practice
Obviousness Under AIA (MPEP 2158)
35 U.S.C. § 102
35 U.S.C. 102 – Novelty / Prior Art
Effectively Filed Date for 102(a)(2)
35 U.S.C. § 102(a)(1)
35 U.S.C. 102 – Novelty / Prior Art
Effectively Filed Date for 102(a)(2)
35 U.S.C. § 102(a)(2)
35 U.S.C. 102 – Novelty / Prior Art
Effectively Filed Date for 102(a)(2)
35 U.S.C. § 102(b)(1)
35 U.S.C. 102 – Novelty / Prior Art
Effectively Filed Date for 102(a)(2)
35 U.S.C. § 102(b)(1)(B)
35 U.S.C. 102 – Novelty / Prior Art
Effectively Filed Date for 102(a)(2)
35 U.S.C. § 102(b)(2)(B)
AIA vs Pre-AIA Practice
Obviousness Under AIA (MPEP 2158)
35 U.S.C. § 103
35 U.S.C. 102 – Novelty / Prior Art
Effectively Filed Date for 102(a)(2)
37 CFR § 1.130(b)
AIA vs Pre-AIA Practice
Obviousness Under AIA (MPEP 2158)
37 CFR § 1.132
AIA vs Pre-AIA Practice
Obviousness Under AIA (MPEP 2158)
MPEP § 2159
AIA vs Pre-AIA Practice
Obviousness Under AIA (MPEP 2158)
MPEP § 716.10

Source Text from USPTO’s MPEP

This is an exact copy of the MPEP from the USPTO. It is here for your reference to see the section in context.

BlueIron Last Updated: 2025-12-31