[Editor Note: This MPEP section is not applicable to applications subject to the first inventor to file provisions of the AIA unless being relied upon to overcome a rejection under pre-AIA 35 U.S.C. 102(g). See 35 U.S.C. 100 (note) and MPEP § 2159. For a discussion of 37 CFR 1.130, affidavits or declarations of attribution or prior public disclosure in applications subject to the first inventor to file provisions of the AIA, see MPEP § 717. For a discussion of affidavits or declarations under 37 CFR 1.131(c), see MPEP § 718.]

I. WHO MAY MAKE AFFIDAVIT OR DECLARATION

Affidavits or declarations filed under 37 CFR 1.131 to overcome a rejection under pre-AIA 35 U.S.C. 102 or 103 must be made by either:

1. (A) The entire inventive entity (i.e., the inventor) of the subject matter claimed.
2. (B) Less than all named joint inventors of an application if it is shown by affidavit or declaration that less than all named joint inventors of an application invented the subject matter of the claim or claims under rejection. For example, one of two joint inventors is accepted where it is shown that one of the joint inventors is the sole inventor of the claim or claims under rejection.
3. (C) For affidavits and declarations submitted in an application filed before September 16, 2012, a joint inventor or assignee under pre-AIA 37 CFR 1.47 if a petition under pre-AIA 37 CFR 1.47 was granted or the application was accepted under pre-AIA 37 CFR 1.42 or 1.43.
4. (D) For affidavits and declarations in applications filed before September 16, 2012, the legal representative of a deceased, insane or otherwise legally incapacitated sole inventor, or joint inventor when item (b) above applies, under pre-AIA 37 CFR 1.42 or 1.43.
5. (E) For affidavits and declarations submitted in applications filed on or after September 16, 2012, the party qualified under 37 CFR 1.42 or 1.46.
6. (F) The assignee or other party in interest when it is not possible to produce the affidavit or declaration of the sole inventor, or joint inventor when item (B) above applies. Ex parte Foster, 1903 C.D. 213, 105 OG 261 (Comm’r Pat. 1903).
7. (G) The owner of the patent under reexamination.

For affidavits and declarations submitted in applications filed before September 16, 2012, where one or more of the named joint inventors of the subject matter of the rejected claim(s) (who had originally signed the oath or declaration for patent application under 37 CFR 1.63 ) is thereafter unavailable to sign an affidavit or declaration under 37 CFR 1.131(a), the affidavit or declaration under 37 CFR 1.131(a) may be signed by the remaining joint inventors provided a petition under 37 CFR 1.183 requesting waiver of the signature of the unavailable joint inventor is submitted with the affidavit or declaration under 37 CFR 1.131(a). Proof that the non-signing joint inventor is unavailable or cannot be found (similar to the proof required for a petition under pre-AIA 37 CFR 1.47 ) must be submitted with the petition under 37 CFR 1.183 (see MPEP § 409.03(d)). Petitions under 37 CFR 1.183 are decided by the Office of Petitions (see MPEP § 1002.02(b)).

II. FORMAL REQUIREMENTS OF AFFIDAVITS AND DECLARATIONS

An affidavit is a statement in writing made under oath before a notary public, magistrate, or officer authorized to administer oaths. See MPEP § 602 et seq. for additional information regarding formal requirements of affidavits.

37 CFR 1.68 permits a declaration to be used instead of an affidavit. The declaration must include an acknowledgment by the declarant that willful false statements and the like are punishable by fine or imprisonment, or both (18 U.S.C. 1001) and may jeopardize the validity of the application or any patent issuing thereon. The declarant must set forth in the body of the declaration that all statements made of the declarant’s own knowledge are true and that all statements made on information and belief are believed to be true.