Can an inventor file a declaration under 37 CFR 1.130 if they are not the applicant?
Yes, an inventor can sign a declaration under 37 CFR 1.130 even if they are not the applicant, but there are important considerations. The MPEP states: When an assignee, obligated assignee, or person showing sufficient proprietary interest is the applicant under 35 U.S.C. 118 rather than the inventor, the inventor may sign an affidavit or…
Read MoreWhat are the formal requirements for affidavits or declarations under 37 CFR 1.130, 1.131, or 1.132?
Affidavits or declarations under 37 CFR 1.130, 1.131, or 1.132 must meet specific formal requirements as outlined in MPEP 717.01(c): They must be properly signed (37 CFR 1.4). They must include the proper jurat or declaration statement (37 CFR 1.68). They should be free of erasures or interlineations made without initials or written assent of…
Read MoreWhat are the formal requirements for affidavits and declarations under 37 CFR 1.130?
MPEP 717.01(c) outlines the formal requirements for affidavits and declarations under 37 CFR 1.130: An affidavit must be a written statement made under oath before a notary public, magistrate, or authorized officer A declaration must include an acknowledgment that willful false statements are punishable by fine or imprisonment, or both (18 U.S.C. 1001) The declarant…
Read MoreWhat is the difference between reviewing sufficiency and reviewing merits of an affidavit?
The review process for affidavits or declarations under 37 CFR 1.130 involves two distinct aspects: sufficiency and merits. According to MPEP 717.01(e): Sufficiency: The question of sufficiency of affidavits or declarations under 37 CFR 1.130 should be reviewed and decided by a primary examiner. Merits: Review on the merits of a 37 CFR 1.130 affidavit…
Read MoreWhat is the difference between a derivation proceeding and using 37 CFR 1.130 provisions?
The MPEP 717.01(d) outlines the key differences between a derivation proceeding and using the provisions of 37 CFR 1.130: Derivation Proceeding: Used when there are competing claims to the same or substantially the same invention Resolves who the true inventor is when different inventive entities are involved Initiated by filing a petition pursuant to 37…
Read MoreHow does an affidavit or declaration under 37 CFR 1.130 differ from one under 37 CFR 1.131?
How does an affidavit or declaration under 37 CFR 1.130 differ from one under 37 CFR 1.131? The primary difference between affidavits or declarations under 37 CFR 1.130 and 37 CFR 1.131 lies in their applicability and purpose. According to MPEP 717.01: “37 CFR 1.130 affidavits or declarations are not applicable to applications subject to…
Read MoreHow does a 37 CFR 1.130 affidavit or declaration differ from a 37 CFR 1.131 affidavit?
The key difference between a 37 CFR 1.130 affidavit or declaration and a 37 CFR 1.131 affidavit lies in their purpose and application. As explained in MPEP 717.01: 37 CFR 1.130 is not the proper way to assert that the relevant disclosure is not prior art under pre-AIA 35 U.S.C. 102(a) because the disclosure was…
Read MoreCan an applicant’s own activities be used against their patent claims?
Yes, an applicant’s own activities can be used against their patent claims. MPEP 715.01(d) clearly states: ‘The rejection may be based on activities by the inventor(s) or a different inventive entity.’ This means that even the applicant’s own public disclosures, sales, or other activities that occurred before the effective filing date of the claimed invention…
Read MoreHow can one appeal the merits of a 37 CFR 1.130 affidavit or declaration?
If you wish to appeal the merits of a 37 CFR 1.130 affidavit or declaration, the process is specified in MPEP 717.01(e): Review on the merits of a 37 CFR 1.130 affidavit or declaration is by appeal to the Patent Trial and Appeal Board. See MPEP § 1201. This means that if you disagree with…
Read MoreHow does the America Invents Act (AIA) affect affidavits and declarations under 37 CFR 1.131(a)?
The America Invents Act (AIA) has significantly impacted the applicability of affidavits and declarations under 37 CFR 1.131(a): For applications subject to the first inventor to file provisions of the AIA, 37 CFR 1.131(a) is generally not applicable. These affidavits or declarations can still be used to overcome rejections under pre-AIA 35 U.S.C. 102(g). For…
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