Can 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 year before the effective filing date of the claimed invention. A declaration under 37 CFR 1.130(a) is not appropriate in this situation since the disclosure is prior art under AIA 35 U.S.C. 102(a)(1) due to the fact that the disclosure was made more than one year before the effective filing date of the claimed invention.’

This restriction is in place because disclosures made more than a year before the effective filing date fall under the AIA 35 U.S.C. 102(a)(1) prior art category and cannot be disqualified through attribution.

To learn more:

• 37 CFR 1.130(a)
• declaration
• one-year limit
• prior art
• AIA 35 U.S.C. 102(a)(1)

To learn more:

• 37 CFR 1.130(a)
• AIA 35 U.S.C. 102(a)(1)