How does a 37 CFR 1.130 affidavit or declaration differ from a 37 CFR 1.131 affidavit?

The key difference between a 37 CFR 1.130 affidavit or declaration and a 37 CFR 1.131 affidavit lies in their purpose and application. As explained in MPEP 717.01:

37 CFR 1.130 is not the proper way to assert that the relevant disclosure is not prior art under pre-AIA 35 U.S.C. 102(a) because the disclosure was by the applicant himself or herself, or the inventive entity. […] Such assertions should be made in 37 CFR 1.131 affidavits or declarations.

In essence:

• 37 CFR 1.130 affidavit or declaration: Used to disqualify a disclosure as prior art by showing it was made by or derived from the inventor(s) under AIA provisions.
• 37 CFR 1.131 affidavit: Used to antedate a reference by showing prior invention under pre-AIA provisions.

Understanding this distinction is crucial for patent applicants and practitioners in choosing the appropriate type of affidavit for their specific situation.

To learn more:

• 37 CFR 1.130
• 37 CFR 1.131
• affidavit
• declaration
• AIA
• pre-AIA

To learn more:

• 37 CFR 1.130
• 37 CFR 1.131