How does the USPTO evaluate the sufficiency of a declaration under 37 CFR 1.130(b)?

This page is an FAQ based on guidance from the Manual of Patent Examining Procedure. It is provided as guidance, with links to the ground truth sources. This is information only: it is not legal advice.

The USPTO evaluates the sufficiency of a declaration under 37 CFR 1.130(b) by considering whether it establishes that the subject matter disclosed was publicly disclosed by the inventor, joint inventor, or another who obtained the subject matter from them, before the date of the disclosure being relied upon as prior art.

MPEP 717.01(b)(1) states:

“To be effective, the declaration or affidavit must show that the disclosure of the subject matter on which the rejection is based is an inventor-originated disclosure.”

The evaluation includes:

• Verifying that the affidavit or declaration provides a reasonable explanation of the presence of additional authors in the prior art disclosure.
• Ensuring that the evidence supports that the disclosure was made by the inventor or a joint inventor, or by another who obtained the subject matter from them.
• Checking that the public disclosure occurred before the date of the potential prior art reference.