MPEP § 717.01(a) — Declarations or Affidavits under 37 CFR 1.130(a) – Attribution

Ninth Edition, Revision 01.2024 · last revised R-11.2013

[Editor Note: This MPEP section is only applicable to applications subject to the first inventor to file provisions of the AIA. See 35 U.S.C. 100 (note) and MPEP § 2159. For applications subject to pre-AIA 35 U.S.C. 102 and pre-AIA 35 U.S.C. 103, see MPEP § 716.10 for affidavits or declarations of attribution under 37 CFR 1.132.]

37 CFR 1.130(a) provides that when any claim of an application or a patent under reexamination is rejected, the applicant or patent owner may submit an appropriate affidavit or declaration to disqualify a disclosure as prior art by establishing that the disclosure was made by the inventor or a joint inventor, or the subject matter disclosed was obtained directly or indirectly from the inventor or a joint inventor. 37 CFR 1.130(a) pertains to the provisions of subparagraph (A) of 35 U.S.C. 102(b)(1)) and 102(b)(2). 35 U.S.C. 102(b)(1)(A) provides that a disclosure made one year or less before the effective filing date of a claimed invention shall not be prior art to the claimed invention under 35 U.S.C. 102(a)(1) if the disclosure was made by the inventor or joint inventor or by another who obtained the subject matter disclosed directly or indirectly from the inventor or a joint inventor, and 35 U.S.C. 102(b)(2)(A) provides that a disclosure shall not be prior art to a claimed invention under 35 U.S.C. 102(a)(2) if the subject matter disclosed was obtained directly or indirectly from the inventor or a joint inventor.