What is the timing requirement for filing a 1.130 declaration?
The timing for filing a 1.130 declaration is critical to its effectiveness. According to MPEP 2155:
“The Office will not apply a disclosure as prior art under AIA 35 U.S.C. 102(a)(1) or (a)(2) if the disclosure was made one year or less before the effective filing date of the claimed invention, and the evidence provided with the declaration or affidavit establishes that the disclosure is by the inventor or a joint inventor, or is by a party who obtained the subject matter from the inventor or a joint inventor.”
This means that the declaration should be filed when responding to a prior art rejection based on a disclosure made within one year of the effective filing date of the claimed invention. It’s important to note that the declaration must be filed before the final rejection or action that closes prosecution, such as a final rejection or a notice of allowance.
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