MPEP § 715.04 — Who May Make Affidavit or Declaration Under 37 CFR 1.131(a); Formal Requirements of Affidavits and Declarations (Annotated Rules)
§715.04 Who May Make Affidavit or Declaration Under 37 CFR 1.131(a); Formal Requirements of Affidavits and Declarations
This page consolidates and annotates all enforceable requirements under MPEP § 715.04, 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.
Who May Make Affidavit or Declaration Under 37 CFR 1.131(a); Formal Requirements of Affidavits and Declarations
This section addresses Who May Make Affidavit or Declaration Under 37 CFR 1.131(a); Formal Requirements of Affidavits and Declarations. Primary authority: 35 U.S.C. 102, 37 CFR 1.131, and 37 CFR 1.63). Contains: 1 requirement, 1 prohibition, 1 permission, and 5 other statements.
Key Rules
Antedating Reference – Pre-AIA (MPEP 2136.05)
[Editor Note: This MPEP section is not applicable to applications subject to the first inventor to file provisions of the AIA unless being relied upon to overcome a rejection under pre-AIA 35 U.S.C. 102(g). See 35 U.S.C. 100 (note) and MPEP § 2159. For a discussion of 37 CFR 1.130, affidavits or declarations of attribution or prior public disclosure in applications subject to the first inventor to file provisions of the AIA, see MPEP § 717. For a discussion of affidavits or declarations under 37 CFR 1.131(c), see MPEP § 718.]
Affidavits or declarations filed under 37 CFR 1.131 to overcome a rejection under pre-AIA 35 U.S.C. 102 or 103 must be made by either:
- (A) The entire inventive entity (i.e., the inventor) of the subject matter claimed.
- (B) Less than all named joint inventors of an application if it is shown by affidavit or declaration that less than all named joint inventors of an application invented the subject matter of the claim or claims under rejection. For example, one of two joint inventors is accepted where it is shown that one of the joint inventors is the sole inventor of the claim or claims under rejection.
- (C) For affidavits and declarations submitted in an application filed before September 16, 2012, a joint inventor or assignee under pre-AIA 37 CFR 1.47 if a petition under pre-AIA 37 CFR 1.47 was granted or the application was accepted under pre-AIA 37 CFR 1.42 or 1.43.
- (D) For affidavits and declarations in applications filed before September 16, 2012, the legal representative of a deceased, insane or otherwise legally incapacitated sole inventor, or joint inventor when item (b) above applies, under pre-AIA 37 CFR 1.42 or 1.43.
- (E) For affidavits and declarations submitted in applications filed on or after September 16, 2012, the party qualified under 37 CFR 1.42 or 1.46.
- (F) The assignee or other party in interest when it is not possible to produce the affidavit or declaration of the sole inventor, or joint inventor when item (B) above applies. Ex parte Foster, 1903 C.D. 213, 105 OG 261 (Comm’r Pat. 1903).
- (G) The owner of the patent under reexamination.
Affidavits or declarations filed under 37 CFR 1.131 to overcome a rejection under pre-AIA 35 U.S.C. 102 or 103 must be made by either (A) The entire inventive entity (i.e., the inventor) of the subject matter claimed.
AIA Definition of Applicant (37 CFR 1.42)
Affidavits or declarations filed under 37 CFR 1.131 to overcome a rejection under pre-AIA 35 U.S.C. 102 or 103 must be made by either:
…
(C) For affidavits and declarations submitted in an application filed before September 16, 2012, a joint inventor or assignee under pre-AIA 37 CFR 1.47 if a petition under pre-AIA 37 CFR 1.47 was granted or the application was accepted under pre-AIA 37 CFR 1.42 or 1.43.
Affidavits or declarations filed under 37 CFR 1.131 to overcome a rejection under pre-AIA 35 U.S.C. 102 or 103 must be made by either:
…
(D) For affidavits and declarations in applications filed before September 16, 2012, the legal representative of a deceased, insane or otherwise legally incapacitated sole inventor, or joint inventor when item (b) above applies, under pre-AIA 37 CFR 1.42 or 1.43.
Affidavits or declarations filed under 37 CFR 1.131 to overcome a rejection under pre-AIA 35 U.S.C. 102 or 103 must be made by either:
…
(E) For affidavits and declarations submitted in applications filed on or after September 16, 2012, the party qualified under 37 CFR 1.42 or 1.46.
Petition to Suspend/Waive Rules (37 CFR 1.183)
For affidavits and declarations submitted in applications filed before September 16, 2012, where one or more of the named joint inventors of the subject matter of the rejected claim(s) (who had originally signed the oath or declaration for patent application under 37 CFR 1.63) is thereafter unavailable to sign an affidavit or declaration under 37 CFR 1.131(a), the affidavit or declaration under 37 CFR 1.131(a) may be signed by the remaining joint inventors provided a petition under 37 CFR 1.183 requesting waiver of the signature of the unavailable joint inventor is submitted with the affidavit or declaration under 37 CFR 1.131(a). Proof that the non-signing joint inventor is unavailable or cannot be found (similar to the proof required for a petition under pre-AIA 37 CFR 1.47) must be submitted with the petition under 37 CFR 1.183 (see MPEP § 409.03(d)). Petitions under 37 CFR 1.183 are decided by the Office of Petitions (see MPEP § 1002.02(b)).
For affidavits and declarations submitted in applications filed before September 16, 2012, where one or more of the named joint inventors of the subject matter of the rejected claim(s) (who had originally signed the oath or declaration for patent application under 37 CFR 1.63) is thereafter unavailable to sign an affidavit or declaration under 37 CFR 1.131(a), the affidavit or declaration under 37 CFR 1.131(a) may be signed by the remaining joint inventors provided a petition under 37 CFR 1.183 requesting waiver of the signature of the unavailable joint inventor is submitted with the affidavit or declaration under 37 CFR 1.131(a). Proof that the non-signing joint inventor is unavailable or cannot be found (similar to the proof required for a petition under pre-AIA 37 CFR 1.47) must be submitted with the petition under 37 CFR 1.183 (see MPEP § 409.03(d)). Petitions under 37 CFR 1.183 are decided by the Office of Petitions (see MPEP § 1002.02(b)).
Prior Art Under Pre-AIA 35 U.S.C. 102 (MPEP 2131-2138)
[Editor Note: This MPEP section is not applicable to applications subject to the first inventor to file provisions of the AIA unless being relied upon to overcome a rejection under pre-AIA 35 U.S.C. 102(g). See 35 U.S.C. 100 (note) and MPEP § 2159. For a discussion of 37 CFR 1.130, affidavits or declarations of attribution or prior public disclosure in applications subject to the first inventor to file provisions of the AIA, see MPEP § 717. For a discussion of affidavits or declarations under 37 CFR 1.131(c), see MPEP § 718.]
AIA vs Pre-AIA Practice
[Editor Note: This MPEP section is not applicable to applications subject to the first inventor to file provisions of the AIA unless being relied upon to overcome a rejection under pre-AIA 35 U.S.C. 102(g). See 35 U.S.C. 100 (note) and MPEP § 2159. For a discussion of 37 CFR 1.130, affidavits or declarations of attribution or prior public disclosure in applications subject to the first inventor to file provisions of the AIA, see MPEP § 717. For a discussion of affidavits or declarations under 37 CFR 1.131(c), see MPEP § 718.]
Examples of Waivers
For affidavits and declarations submitted in applications filed before September 16, 2012, where one or more of the named joint inventors of the subject matter of the rejected claim(s) (who had originally signed the oath or declaration for patent application under 37 CFR 1.63) is thereafter unavailable to sign an affidavit or declaration under 37 CFR 1.131(a), the affidavit or declaration under 37 CFR 1.131(a) may be signed by the remaining joint inventors provided a petition under 37 CFR 1.183 requesting waiver of the signature of the unavailable joint inventor is submitted with the affidavit or declaration under 37 CFR 1.131(a). Proof that the non-signing joint inventor is unavailable or cannot be found (similar to the proof required for a petition under pre-AIA 37 CFR 1.47) must be submitted with the petition under 37 CFR 1.183 (see MPEP § 409.03(d)). Petitions under 37 CFR 1.183 are decided by the Office of Petitions (see MPEP § 1002.02(b)).
Citations
| Primary topic | Citation |
|---|---|
| AIA vs Pre-AIA Practice Antedating Reference – Pre-AIA (MPEP 2136.05) Prior Art Under Pre-AIA 35 U.S.C. 102 (MPEP 2131-2138) | 35 U.S.C. § 100 |
| AIA Definition of Applicant (37 CFR 1.42) Antedating Reference – Pre-AIA (MPEP 2136.05) | 35 U.S.C. § 102 |
| AIA vs Pre-AIA Practice Antedating Reference – Pre-AIA (MPEP 2136.05) Prior Art Under Pre-AIA 35 U.S.C. 102 (MPEP 2131-2138) | 35 U.S.C. § 102(g) |
| AIA vs Pre-AIA Practice Antedating Reference – Pre-AIA (MPEP 2136.05) Prior Art Under Pre-AIA 35 U.S.C. 102 (MPEP 2131-2138) | 37 CFR § 1.130 |
| AIA Definition of Applicant (37 CFR 1.42) Antedating Reference – Pre-AIA (MPEP 2136.05) | 37 CFR § 1.131 |
| Examples of Waivers Petition to Suspend/Waive Rules (37 CFR 1.183) | 37 CFR § 1.131(a) |
| AIA vs Pre-AIA Practice Antedating Reference – Pre-AIA (MPEP 2136.05) Prior Art Under Pre-AIA 35 U.S.C. 102 (MPEP 2131-2138) | 37 CFR § 1.131(c) |
| Examples of Waivers Petition to Suspend/Waive Rules (37 CFR 1.183) | 37 CFR § 1.183 |
| AIA Definition of Applicant (37 CFR 1.42) Antedating Reference – Pre-AIA (MPEP 2136.05) | 37 CFR § 1.42 |
| AIA Definition of Applicant (37 CFR 1.42) Antedating Reference – Pre-AIA (MPEP 2136.05) Examples of Waivers Petition to Suspend/Waive Rules (37 CFR 1.183) | 37 CFR § 1.47 |
| Examples of Waivers Petition to Suspend/Waive Rules (37 CFR 1.183) | 37 CFR § 1.63 |
| – | 37 CFR § 1.68 |
| Examples of Waivers Petition to Suspend/Waive Rules (37 CFR 1.183) | MPEP § 1002.02(b) |
| AIA vs Pre-AIA Practice Antedating Reference – Pre-AIA (MPEP 2136.05) Prior Art Under Pre-AIA 35 U.S.C. 102 (MPEP 2131-2138) | MPEP § 2159 |
| Examples of Waivers Petition to Suspend/Waive Rules (37 CFR 1.183) | MPEP § 409.03(d) |
| – | MPEP § 602 |
| AIA vs Pre-AIA Practice Antedating Reference – Pre-AIA (MPEP 2136.05) Prior Art Under Pre-AIA 35 U.S.C. 102 (MPEP 2131-2138) | MPEP § 717 |
| AIA vs Pre-AIA Practice Antedating Reference – Pre-AIA (MPEP 2136.05) Prior Art Under Pre-AIA 35 U.S.C. 102 (MPEP 2131-2138) | MPEP § 718 |
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.
Official MPEP § 715.04 — Who May Make Affidavit or Declaration Under 37 CFR 1.131(a); Formal Requirements of Affidavits and Declarations
Source: USPTO715.04 Who May Make Affidavit or Declaration Under 37 CFR 1.131(a); Formal Requirements of Affidavits and Declarations [R-01.2024]
[Editor Note: This MPEP section is not applicable to applications subject to the first inventor to file provisions of the AIA unless being relied upon to overcome a rejection under pre-AIA 35 U.S.C. 102(g). See 35 U.S.C. 100 (note) and MPEP § 2159. For a discussion of 37 CFR 1.130, affidavits or declarations of attribution or prior public disclosure in applications subject to the first inventor to file provisions of the AIA, see MPEP § 717. For a discussion of affidavits or declarations under 37 CFR 1.131(c), see MPEP § 718.]
I. WHO MAY MAKE AFFIDAVIT OR DECLARATIONAffidavits or declarations filed under 37 CFR 1.131 to overcome a rejection under pre-AIA 35 U.S.C. 102 or 103 must be made by either:
- (A) The entire inventive entity (i.e., the inventor) of the subject matter claimed.
- (B) Less than all named joint inventors of an application if it is shown by affidavit or declaration that less than all named joint inventors of an application invented the subject matter of the claim or claims under rejection. For example, one of two joint inventors is accepted where it is shown that one of the joint inventors is the sole inventor of the claim or claims under rejection.
- (C) For affidavits and declarations submitted in an application filed before September 16, 2012, a joint inventor or assignee under pre-AIA 37 CFR 1.47 if a petition under pre-AIA 37 CFR 1.47 was granted or the application was accepted under pre-AIA 37 CFR 1.42 or 1.43.
- (D) For affidavits and declarations in applications filed before September 16, 2012, the legal representative of a deceased, insane or otherwise legally incapacitated sole inventor, or joint inventor when item (b) above applies, under pre-AIA 37 CFR 1.42 or 1.43.
- (E) For affidavits and declarations submitted in applications filed on or after September 16, 2012, the party qualified under 37 CFR 1.42 or 1.46.
- (F) The assignee or other party in interest when it is not possible to produce the affidavit or declaration of the sole inventor, or joint inventor when item (B) above applies. Ex parte Foster, 1903 C.D. 213, 105 OG 261 (Comm’r Pat. 1903).
- (G) The owner of the patent under reexamination.
For affidavits and declarations submitted in applications filed before September 16, 2012, where one or more of the named joint inventors of the subject matter of the rejected claim(s) (who had originally signed the oath or declaration for patent application under 37 CFR 1.63) is thereafter unavailable to sign an affidavit or declaration under 37 CFR 1.131(a), the affidavit or declaration under 37 CFR 1.131(a) may be signed by the remaining joint inventors provided a petition under 37 CFR 1.183 requesting waiver of the signature of the unavailable joint inventor is submitted with the affidavit or declaration under 37 CFR 1.131(a). Proof that the non-signing joint inventor is unavailable or cannot be found (similar to the proof required for a petition under pre-AIA 37 CFR 1.47) must be submitted with the petition under 37 CFR 1.183 (see MPEP § 409.03(d)). Petitions under 37 CFR 1.183 are decided by the Office of Petitions (see MPEP § 1002.02(b)).
II. FORMAL REQUIREMENTS OF AFFIDAVITS AND DECLARATIONSAn affidavit is a statement in writing made under oath before a notary public, magistrate, or officer authorized to administer oaths. See MPEP § 602et seq. for additional information regarding formal requirements of affidavits.
37 CFR 1.68 permits a declaration to be used instead of an affidavit. The declaration must include an acknowledgment by the declarant that willful false statements and the like are punishable by fine or imprisonment, or both (18 U.S.C. 1001) and may jeopardize the validity of the application or any patent issuing thereon. The declarant must set forth in the body of the declaration that all statements made of the declarant’s own knowledge are true and that all statements made on information and belief are believed to be true.