Can an inventor file a 37 CFR 1.130 declaration if they are not the applicant?
This is a nuanced situation addressed in MPEP 2155.05. The MPEP states:
“When an assignee, obligated assignee, or person showing sufficient proprietary interest is the applicant under 35 U.S.C. 118 rather than the inventor, the inventor may sign an affidavit or declaration under 37 CFR 1.130 to except subject matter in a disclosure of the invention as prior art, but the declaration must be filed by a party having authority to take action in the application.”
This means that while inventors can sign these declarations, they may not have the authority to file them if they are not the applicant. The actual filing must be done by someone with the authority to take action in the application, typically the applicant or their legal representative.
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