Who May Make Affidavit or Declaration; Formal Requirements of Affidavits and Declarations

[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

.]

I.

WHO MAY MAKE AFFIDAVIT OR DECLARATION

Anyone who has knowledge of the facts discussed in

the declaration may sign a declaration under

37 CFR 1.130

. In accordance

with

37 CFR

1.130

, however, it is the applicant or patent owner who may

submit (i.e., file) an affidavit or declaration. When an assignee, obligated

assignee, or person showing sufficient proprietary interest is the applicant under

35 U.S.C.

118

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 § 2155.05

.

II.

FORMAL REQUIREMENTS OF AFFIDAVITS AND DECLARATIONS AND ATTACHED

EXHIBITS

An affidavit is a statement in writing made under

oath before a notary public, magistrate, or officer authorized to administer

oaths. See

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

eq.

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.

Exhibits, such as those filed as part of an

affidavit or declaration under

37 CFR 1.130

, must comply with

the requirements of

37 CFR 1.91

to be entered into

an application file. Exhibits that do not comply with the requirements of

37 CFR

1.91

will be disposed of or returned to applicant at the

discretion of the Office. See also

MPEP § 608.03(a)

.