When is a declaration under 37 CFR 1.130(b) not available?

A declaration under 37 CFR 1.130(b) is not available in certain situations. The MPEP outlines two specific cases:

• If the disclosure was made more than one year before the effective filing date of the claimed invention.
• When the disclosure applied in a rejection is a U.S. patent or U.S. patent application publication that claims an invention substantially the same as the applicant’s claimed invention, and the affidavit contends that an inventor named in the U.S. patent or application derived the invention from the inventor named in the application or patent.

As stated in the MPEP: The provision of 37 CFR 1.130(b) is not available: (1) If the disclosure was made (e.g., patented, described in a printed publication, or in public use, on sale, or otherwise available to the public) more than one year before the effective filing date of the claimed invention. […] (2) When the disclosure that is applied in a rejection is (1) a U.S. patent or U.S. patent application publication that (2) claims an invention that is the same or substantially the same as the applicant’s or patent owner’s claimed invention, and (3) the affidavit or declaration contends that an inventor named in the U.S. patent or U.S. patent application publication derived the claimed invention from the inventor or a joint inventor named in the application or patent.

To learn more:

• 37 CFR 1.130(b)
• declarations
• affidavits
• prior art
• exceptions

To learn more:

• 37 CFR 1.130(b)