Does 37 CFR 1.130(b) require the disclosure to be an enabling disclosure?

No, 37 CFR 1.130(b) does not require the disclosure to be an enabling disclosure within the meaning of 35 U.S.C. 112(a). The MPEP clearly states:

There is no requirement that the affidavit or declaration demonstrate that the disclosure by the inventor, a joint inventor, or another who obtained the subject matter disclosed directly or indirectly from an inventor or a joint inventor was an enabling disclosure of the subject matter within the meaning of 35 U.S.C. 112(a).

This means that when submitting a declaration under 37 CFR 1.130(b) to disqualify an intervening disclosure as prior art, the inventor or joint inventor does not need to prove that their prior public disclosure was enabling. The focus is on establishing that the subject matter was publicly disclosed before the intervening disclosure, rather than on the level of detail or enablement provided in that disclosure.

However, it’s important to note that while enablement is not required for the purposes of 37 CFR 1.130(b), the disclosure should still provide sufficient detail to establish that the same subject matter was disclosed. The MPEP advises that if the subject matter was not in a printed publication, the affidavit or declaration must describe the subject matter with sufficient detail and particularity to determine what subject matter had been publicly disclosed on the earlier date 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.

To learn more:

• 37 CFR 1.130(b)
• enabling disclosure
• prior public disclosure
• 35 U.S.C. 112(a)

To learn more:

• 37 CFR 1.130(b)
• 35 U.S.C. 112(a)