Can 37 CFR 1.130 declarations be used for non-public disclosures?
37 CFR 1.130 declarations are primarily designed to address public disclosures that could be considered prior art under AIA 35 U.S.C. 102(a). However, they can also be used in certain situations involving non-public disclosures:
- 1.130(a) declarations can address subject matter obtained directly or indirectly from the inventor, which may include non-public disclosures.
- 1.130(b) declarations are specifically for public disclosures and cannot be used for non-public disclosures.
The MPEP 2155.01 states: “Any affidavit or declaration under 37 CFR 1.130(a) or (b) must identify the subject matter publicly disclosed and provide the date of the public disclosure of such subject matter by the inventor or a joint inventor or another who obtained the subject matter disclosed directly or indirectly from the inventor or a joint inventor.” This implies that the focus is on public disclosures, but the provision for “subject matter obtained directly or indirectly from the inventor” in 1.130(a) can encompass some non-public situations.
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