Oaths and Declarations

35 U.S.C. 25

Declaration in lieu of oath.

(a) The Director may by rule prescribe that any document to be filed

in the Patent and Trademark Office and which is required by any law, rule, or

other regulation to be under oath may be subscribed to by a written declaration in

such form as the Director may prescribe, such declaration to be in lieu of the

oath otherwise required.

(b) Whenever such written declaration is used, the document must warn

the declarant that willful false statements and the like are punishable by fine or

imprisonment, or both (

18 U.S.C. 1001

).

35 U.S.C. 26

Effect of defective execution.

Any document to be filed in the Patent and Trademark Office and which is

required by any law, rule, or other regulation to be executed in a specified manner may

be provisionally accepted by the Director despite a defective execution, provided a

properly executed document is submitted within such time as may be prescribed.

A copy, such as a photocopy or facsimile transmission, of an

originally executed oath or declaration is encouraged to be filed (see

MPEP §

502.01

), especially since applications are maintained in

electronic form, not paper. The original should be retained by applicant, or his or her

representative as evidence of authenticity. If a question of authenticity arises, the U.S.

Patent and Trademark Office may require submission of the original. See

37 CFR

1.4(d)(1)(ii)

.

I.

OATHS

37 CFR 1.66 Statements under oath.

An oath or affirmation may be made before any person

within the United States authorized by law to administer oaths

riginal should be retained by applicant, or his or her

representative as evidence of authenticity. If a question of authenticity arises, the U.S.

Patent and Trademark Office may require submission of the original. See

37 CFR

1.4(d)(1)(ii)

.

I.

OATHS

37 CFR 1.66 Statements under oath.

An oath or affirmation may be made before any person

within the United States authorized by law to administer oaths. An oath made in a

foreign country may be made before any diplomatic or consular officer of the United

States authorized to administer oaths, or before any officer having an official seal

and authorized to administer oaths in the foreign country in which the applicant may

be, whose authority shall be proved by a certificate of a diplomatic or consular

officer of the United States, or by an apostille of an official designated by a

foreign country which, by treaty or convention, accords like effect to apostilles of

designated officials in the United States. The oath shall be attested in all cases in

this and other countries, by the proper official seal of the officer before whom the

oath or affirmation is made. Such oath or affirmation shall be valid as to execution

if it complies with the laws of the State or country where made. When the person

before whom the oath or affirmation is made in this country is not provided with a

seal, his official character shall be established by competent evidence, as by a

certificate from a clerk of a court of record or other proper officer having a

seal.

An oath or affirmation may be made before any person

within the United States authorized by law to administer oaths. An oath made in a

foreign country may be made in accordance with

37 CFR 1.66

. The authority of

military personnel to act as a notary is set forth in 10 U.S.C. 1044(a).

The language of

35 U.S.C. 115

and

37 CFR 1.66

is

such that an attorney in the application is not barred from administering the oath as

notary

be made before any person

within the United States authorized by law to administer oaths. An oath made in a

foreign country may be made in accordance with

37 CFR 1.66

. The authority of

military personnel to act as a notary is set forth in 10 U.S.C. 1044(a).

The language of

35 U.S.C. 115

and

37 CFR 1.66

is

such that an attorney in the application is not barred from administering the oath as

notary. The Office presumes that an attorney acting as notary is cognizant of the extent

of his or her authority and jurisdiction and will not knowingly jeopardize his or her

client’s rights by performing an illegal act. If such practice is permissible under the

law of the jurisdiction where the oath is administered, then the oath is a valid

oath.

The law of the District of Columbia prohibits the

administering of oaths by the attorney in the case. If the oath is known to be void

because of being administered by the attorney in a jurisdiction where the law holds this

to be invalid, a new oath or declaration should be submitted. The application file may

be referred to the Office of Enrollment and Discipline. See

37 CFR 1.66

and

MPEP §

604

.

A.

Seal

A seal is usually impressed on an oath. Documents with

seals cannot be adequately scanned for retention in an Image File Wrapper, and

because the Office maintains patent applications in an image form, the Office

strongly encourages the use of declarations rather than oaths. However, oaths

executed by military personnel in accordance with 10 U.S.C. 1044(a) and those

executed in many states including Alabama, Louisiana, Maryland, Massachusetts, New

Jersey, New York, Rhode Island, South Carolina, and Virginia need not be impressed

with a seal. See paragraph B. below for information regarding venue

the Office

strongly encourages the use of declarations rather than oaths. However, oaths

executed by military personnel in accordance with 10 U.S.C. 1044(a) and those

executed in many states including Alabama, Louisiana, Maryland, Massachusetts, New

Jersey, New York, Rhode Island, South Carolina, and Virginia need not be impressed

with a seal. See paragraph B. below for information regarding venue.

When the person before whom the oath or affirmation is

made in this country is not provided with a seal, his or her official character shall

be established by competent evidence, as by a certificate from a clerk of a court of

record or other proper officer having a seal, except as noted above. When the issue

concerns the authority of the person administering the oath, proof of authority may

be required. Depending on the jurisdiction, the seal may be either embossed or rubber

stamped. The latter should not be confused with a stamped legend indicating only the

date of expiration of the notary’s commission.

In some jurisdictions, the seal of the notary is not

required but the official title of the officer must be on the oath. This applies to

Alabama, California (certain notaries), Louisiana, Maryland, Massachusetts, New

Jersey, New York, Ohio, Puerto Rico, Rhode Island, South Carolina, and Virginia.

See

MPEP § 602.04

for foreign executed

oaths.

B.

Venue

That portion of an oath or affidavit indicating where

the oath is taken is known as the venue. Where the county and state in the venue

agree with the county and state in the seal, no problem arises. If the venue and seal

do not correspond in county and state, the jurisdiction of the notary must be

determined from statements by the notary appearing on the oath. Venue and notary

jurisdiction must correspond or the oath is improper. The oath should show on its

face that it was taken within the jurisdiction of the certifying officer or notary.

This may be given either in the venue or in the body of the jurat

and seal

do not correspond in county and state, the jurisdiction of the notary must be

determined from statements by the notary appearing on the oath. Venue and notary

jurisdiction must correspond or the oath is improper. The oath should show on its

face that it was taken within the jurisdiction of the certifying officer or notary.

This may be given either in the venue or in the body of the jurat. Otherwise, a new

oath or declaration, or a certificate of the notary that the oath was taken within

his or her jurisdiction, should be submitted.

II.

DECLARATIONS

37 CFR 1.68  Declaration in lieu of oath.

Any document to be filed in the Patent and Trademark Office and which

is required by any law, rule, or other regulation to be under oath may be subscribed

to by a written declaration. Such declaration may be used in lieu of the oath

otherwise required, if, and only if, the declarant is on the same document, warned

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.

18 U.S.C. 1001

Statements or entries generally.

Whoever, in any matter within the jurisdiction of any department or

agency of the United States knowingly and willfully falsifies, conceals, or covers up

by any trick, scheme, or device a material fact, or makes any false, fictitious or

fraudulent statements or representations, or makes or uses any false writing or

document knowing the same to contain any false, fictitious or fraudulent statement or

entry, shall be fined not more than $10,000 or imprisoned not more than five years,

or both.

By statute,

35 U.S.C

lly falsifies, conceals, or covers up

by any trick, scheme, or device a material fact, or makes any false, fictitious or

fraudulent statements or representations, or makes or uses any false writing or

document knowing the same to contain any false, fictitious or fraudulent statement or

entry, shall be fined not more than $10,000 or imprisoned not more than five years,

or both.

By statute,

35 U.S.C. 25

, the Director has been

empowered to prescribe instances when a written declaration may be accepted in lieu of

the oath for “any document to be filed in the Patent and Trademark Office.” A

declaration may be submitted in lieu of an oath in any document filed in the Office

provided the declaration complies with the requirements of

37 CFR 1.68

. A

37 CFR

1.68

declaration need not be ribboned to the other papers, even if

signed in a country foreign to the United States. However, because it is an integral

part of the application, it must be maintained together therewith. When a declaration is

used, it is unnecessary to appear before any official in connection with the making of

the declaration.

The filing of a written declaration is acceptable in lieu

of an original application oath that is informal.

Office personnel are authorized to accept a statutory declaration under

28 U.S.C. 1746 filed in the U.S. Patent and Trademark Office in lieu of an “oath” or

declaration under

35

U.S.C. 25

and

37 CFR 1.68

, provided the statutory

declaration otherwise complies with the requirements of law

on.

The filing of a written declaration is acceptable in lieu

of an original application oath that is informal.

Office personnel are authorized to accept a statutory declaration under

28 U.S.C. 1746 filed in the U.S. Patent and Trademark Office in lieu of an “oath” or

declaration under

35

U.S.C. 25

and

37 CFR 1.68

, provided the statutory

declaration otherwise complies with the requirements of law.

Section 1746 of Title 28 of the United States Code provides:

Whenever, under any law of the United States or under any rule,

regulation, order, or requirement made pursuant to law, any matter is required or

permitted to be supported, evidenced, established, or proved by the sworn

declaration, verification, certificate, statement, oath or affidavit, in writing of

the person making the same (other than a deposition, or an oath of office, or an oath

required to be taken before a specified official other than notary public), such

matter may, with like force and effect, be supported, evidenced, established, or

proved by the unsworn declaration, certificate, verification, or statement, in

writing of such person which is subscribed by him, as true under penalty of perjury,

and dated, in substantially the following form:

[1] If executed without the United States:

“I declare (or certify, verify, or state) under penalty of perjury

under the laws of the United States of America that the foregoing is true and

correct. Executed on (date).

(Signature).”

[2] If executed within the United States its territories,

possessions, or commonwealths:

“I declare (or certify, verify, or state) under penalty of perjury

that the foregoing is true and correct. Executed on (date).

(Signature).”