Does the manner of prior public disclosure matter when submitting an affidavit or declaration?
No, the manner of prior public disclosure is not critical when submitting an affidavit or declaration under 37 CFR 1.130(b). The MPEP states: The manner of disclosure of subject matter referenced in an affidavit or declaration under 37 CFR 1.130(b)(2) is not critical. Just as the prior art provision of AIA 35 U.S.C. 102(a)(1) encompasses any disclosure that renders a claimed invention “available to the public,” any manner of disclosure may be evidenced in an affidavit or declaration under 37 CFR 1.130(b).
This means that the prior public disclosure by the inventor or joint inventor does not need to be in the same format or use the same words as the intervening disclosure. For example, an inventor could have disclosed the subject matter in a conference presentation, while the intervening disclosure was in a journal article. The difference in the manner of disclosure or wording does not preclude the use of an affidavit or declaration to except the intervening disclosure as prior art.
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