Can a 37 CFR 1.130(b) declaration be used for U.S. patents or patent application publications?
No, a declaration under 37 CFR 1.130(b) cannot be used for U.S. patents or U.S. patent application publications naming another inventor. MPEP 717.01(b) explicitly states:
‘A declaration or affidavit under 37 CFR 1.130(b) is not appropriate when the reference is either a U.S. patent or U.S. patent application publication of a patented or pending application naming another inventor, where the subject matter disclosed was obtained directly or indirectly from the inventor or joint inventor.’
This limitation means:
- 37 CFR 1.130(b) declarations are not applicable to U.S. patents or published U.S. patent applications that name a different inventor.
- These declarations are intended for other types of prior art disclosures, such as publications or public presentations.
- For U.S. patents or patent application publications, other mechanisms may be necessary to overcome the rejection.
Understanding this restriction is crucial when determining the appropriate strategy for responding to prior art rejections in patent applications.
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