How does a 37 CFR 1.130(b) declaration establish the date of prior public disclosure?
How does a 37 CFR 1.130(b) declaration establish the date of prior public disclosure?
A 37 CFR 1.130(b) declaration establishes the date of prior public disclosure by providing evidence of the public availability of the disclosed subject matter before the relevant date of the potential prior art. According to MPEP 717.01(b):
‘The evidence necessary to show that the disclosure was made publicly available before the relevant date of the potential prior art disclosure depends upon whether it is apparent from the disclosure itself that it was publicly available.’
The declaration should include:
- The date of the public disclosure
- A description of how the disclosure was made publicly available
- Evidence supporting the public availability (e.g., copies of publications, conference presentations, or web archives)
- An explanation of how the disclosed subject matter is the same as the subject matter in the application
If the public availability is not apparent from the disclosure itself, additional evidence may be required to establish the date and nature of the public disclosure.
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