What types of evidence can be submitted in affidavits or declarations under 37 CFR 1.132?
Affidavits or declarations under 37 CFR 1.132 can include various types of evidence to support patentability. MPEP 716 outlines several categories of evidence that can be submitted:
- Unexpected results: Evidence that the claimed invention produces surprising or unexpected outcomes
- Commercial success: Proof of significant market success related to the claimed invention
- Long-felt need: Evidence that the invention solves a persistent problem in the field
- Failure of others: Documentation showing that others have tried and failed to solve the problem addressed by the invention
- Copying: Evidence that competitors have copied the invention
- Skepticism of experts: Proof that experts in the field were doubtful about the invention’s feasibility
- Inoperability of the prior art: Evidence showing that prior art references do not function as described
- Attribution: Proof of proper inventorship or ownership of the claimed subject matter
The MPEP states:
‘The types of evidence outlined above are not intended to be an exhaustive list.’
Applicants can submit any relevant evidence that supports the patentability of their invention, and examiners will consider all properly submitted evidence in their evaluation.
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