What is the difference between reviewing sufficiency and reviewing merits of an affidavit?

The review process for affidavits or declarations under 37 CFR 1.130 involves two distinct aspects: sufficiency and merits. According to MPEP 717.01(e):

• Sufficiency:
  

  The question of sufficiency of affidavits or declarations under 37 CFR 1.130 should be reviewed and decided by a primary examiner.

• Merits:
  

  Review on the merits of a 37 CFR 1.130 affidavit or declaration is by appeal to the Patent Trial and Appeal Board.

In essence, the primary examiner reviews whether the affidavit meets the formal requirements and is sufficient on its face. The review of merits, which involves assessing the substantive content and its impact on patentability, is handled through the appeal process if the applicant disagrees with the examiner’s decision.

To learn more:

• affidavits
• declarations
• 37 CFR 1.130
• sufficiency review
• merit review
• patent examination process

To learn more:

• 37 CFR 1.130