Are there situations where 37 CFR 1.130(a) declarations are not available?

Yes, there are situations where declarations under 37 CFR 1.130(a) are not available. The MPEP outlines two main scenarios:

1. If the disclosure was made more than one year before the effective filing date of the claimed invention.
2. When the disclosure is a U.S. patent or U.S. patent application publication that claims an invention that is the same or substantially the same as the applicant’s claimed invention, and the affidavit or declaration contends that an inventor named in the U.S. patent or publication derived the claimed invention from the inventor or joint inventor named in the application or patent.

The MPEP states: The provision of 37 CFR 1.130(a) is not available: (1) If the disclosure was made (e.g., patented, described in a printed publication, or in public use, on sale, or otherwise available to the public) more than one year before the effective filing date of the claimed invention.

It’s important for applicants to be aware of these limitations when considering the use of 37 CFR 1.130(a) declarations.

To learn more:

• 37 CFR 1.130(a)
• declaration limitations
• prior art
• effective filing date
• derived invention

To learn more:

• 37 CFR 1.130(a)