MPEP § 2155.05 — Who May File an Affidavit or Declaration Under 37 CFR 1.130

Ninth Edition, Revision 01.2024 · last revised R-01.2024

[Editor Note: This MPEP section is only applicable to applications subject to examination under the first inventor to file (FITF) provisions of the AIA as set forth in 35 U.S.C. 100 (note). See MPEP § 2159 et seq. to determine whether an application is subject to examination under the FITF provisions, and MPEP § 2131-MPEP § 2138 for examination of applications subject to pre-AIA 35 U.S.C. 102.]

In accordance with 37 CFR 1.130, the applicant or patent owner may submit an affidavit or declaration. When an assignee, obligated assignee, or person showing sufficient proprietary interest is the applicant under 35 U.S.C. 118 rather than the inventor, the applicant or their representative must be the party that files the affidavit or declaration under 37 CFR 1.130 even if the inventor or any party with knowledge of the relevant facts signed the affidavit or declaration. In other words, the affidavit or declaration must be filed by a party having authority to take action in the application. Authority to file papers in an application generally does not lie with the inventor if the inventor is not the applicant. See MPEP § 717.01(c).