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…
Read MoreHow 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…
Read MoreCan 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…
Read MoreWhat must be shown in a 37 CFR 1.131(a) affidavit or declaration?
A 37 CFR 1.131(a) affidavit or declaration must establish possession of either the whole invention claimed or something falling within the claim. According to MPEP 715.02: The 37 CFR 1.131(a) affidavit or declaration must establish possession of either the whole invention claimed or something falling within the claim (such as a species of a claimed…
Read MoreCan a 37 CFR 1.130(a) declaration be used for disclosures made more than one year before the effective filing date?
No, a declaration under 37 CFR 1.130(a) cannot be used for disclosures made more than one year before the effective filing date of the claimed invention. This limitation is clearly stated in MPEP 717.01(a): ‘The provisions of 37 CFR 1.130(a) are not available if the rejection is based upon a disclosure made more than one…
Read MoreHow does filing a 37 CFR 1.63 oath or declaration affect the correspondence address in pre-AIA applications?
The filing of a 37 CFR 1.63 oath or declaration in pre-AIA applications has significant implications for the correspondence address. According to MPEP 403.01(b): Where a correspondence address was set forth or changed pursuant to pre-AIA 37 CFR 1.33(a)(1) (prior to the filing of a pre-AIA 37 CFR 1.63 oath or declaration), that correspondence address…
Read MoreCan an attorney sign an oath or declaration on behalf of an inventor?
No, an attorney cannot sign an oath or declaration on behalf of an inventor, even if they have been given power of attorney to do so. This rule applies to applications filed before September 16, 2012. According to MPEP § 602.08(b), “The oath or declaration may not be signed by an attorney on behalf of…
Read MoreWho can administer the oath or declaration for a patent application?
For patent applications filed before September 16, 2012, the oath or declaration can be administered by various authorized individuals, depending on the location. According to pre-AIA 35 U.S.C. 115: Within the United States: Any person authorized by law to administer oaths In a foreign country: A diplomatic or consular officer of the United States authorized…
Read MoreCan an inventor’s oath or declaration be amended after signing?
Generally, an inventor’s oath or declaration should not be amended after signing. The MPEP clearly states: The wording of an oath or declaration should not be amended, altered or changed in any manner after it has been signed. If there are issues with the oath or declaration, the proper course of action is typically to…
Read MoreWhat is the significance of venue in patent oaths and declarations?
Venue is a crucial aspect of patent oaths and declarations. MPEP 602 states, “That portion of an oath or affidavit indicating where the oath is taken is known as the venue. […] Venue and notary jurisdiction must correspond or the oath is improper.” This means that the location where the oath is taken must match…
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