Affidavits or declarations under 37 CFR 1.130 must be timely presented in order to be admitted. Affidavits and declarations submitted under 37 CFR 1.130 and other evidence traversing rejections are considered timely if submitted:

1. (A) prior to a final rejection;
2. (B) before appeal in an application not having a final rejection;
3. (C) after final rejection, but before or on the same date of filing an appeal, upon a showing of good and sufficient reasons why the affidavit or other evidence is necessary and was not earlier presented in compliance with 37 CFR 1.116(e); or
4. (D) after the prosecution is closed (e.g., after a final rejection, after appeal, or after allowance) if applicant files the affidavit or other evidence with a request for continued examination (RCE) under 37 CFR 1.114 in a utility or plant application filed on or after June 8, 1995; or a continued prosecution application (CPA) under 37 CFR 1.53(d) in a design application.

All admitted affidavits and declarations are acknowledged and commented upon by the examiner in the next succeeding action, and an indication of such should be made on the Office Action Summary, Notice of Allowability, or Advisory Action cover sheet, as appropriate.

For affidavits or declarations under 37 CFR 1.130 filed after appeal, see 37 CFR 41.33(d) and MPEP § 1206 and § 1211.03.

Review of an examiner’s refusal to enter an affidavit as untimely is by petition and not by appeal to the Patent Trial and Appeal Board. In re Deters, 515 F.2d 1152, 185 USPQ 644 (CCPA 1975); Ex parte Hale, 49 USPQ 209 (Bd. App. 1941).