What is an affidavit or declaration under 37 CFR 1.130 and how can it overcome a 35 U.S.C. 102 rejection?

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.

An affidavit or declaration under 37 CFR 1.130 is a sworn statement that can be used to overcome a 35 U.S.C. 102 rejection by establishing that a disclosure is not prior art. There are two types:

1. Affidavit or declaration of attribution (37 CFR 1.130(a))
2. Affidavit or declaration of prior public disclosure (37 CFR 1.130(b))

MPEP 2152.06 explains: “Under 37 CFR 1.130(a), an affidavit or declaration of attribution may be submitted to except a disclosure as prior art because it was made by the inventor or a joint inventor, or the subject matter disclosed was obtained directly or indirectly from the inventor or a joint inventor.“

For 37 CFR 1.130(b), the MPEP states: “Under 37 CFR 1.130(b), an affidavit or declaration of prior public disclosure may be submitted to except an intervening disclosure as prior art if the subject matter disclosed had been publicly disclosed by the inventor or a joint inventor or another who obtained the subject matter disclosed directly or indirectly from the inventor or joint inventor.”