What is the difference between an affidavit and a declaration in patent applications?

In the context of patent applications, affidavits and declarations serve similar purposes but have different formal requirements. According to MPEP 717.01(c): Affidavit: A statement in writing made under oath before a notary public, magistrate, or officer authorized to administer oaths. Declaration: A statement in compliance with 37 CFR 1.68 and 28 U.S.C. 1746, which allows…

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How does an affidavit or declaration of commercial success relate to patent claims?

An affidavit or declaration of commercial success must establish a clear nexus between the claimed invention and the commercial success. Simply attributing success to a product or process “constructed according to the disclosure and claims” is not sufficient to establish this nexus. The MPEP 716.03(a) states: “An affidavit or declaration attributing commercial success to a…

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Can an affidavit or declaration under 37 CFR 1.131(a) be used to swear behind a U.S. patent or U.S. patent application publication?

An affidavit or declaration under 37 CFR 1.131(a) cannot be used to swear behind a U.S. patent or U.S. patent application publication that claims the rejected invention. The MPEP clearly states: ’37 CFR 1.131(a) is not available if the reference is a U.S. patent or U.S. patent application publication of a pending or patented application…

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Can an inventor use a 37 CFR 1.131(a) affidavit to overcome a rejection based on a commonly owned patent or application?

No, an inventor cannot use a 37 CFR 1.131(a) affidavit to overcome a rejection based on a commonly owned patent or application. This is because such references are not considered prior art that can be antedated. According to MPEP 715.01(a): “Where the reference is a U.S. patent or patent application publication of a common assignee…

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