2155.05 Who May File an Affidavit or Declaration Under 37 CFR 1.130 [R-07.2022]

[Editor Note: This MPEP section is only applicable to applications subject to examination under the first inventor to file (FITF) provisions of the AIA as set forth in 35 U.S.C. 100 (note). See MPEP § 2159 et seq. to determine whether an application is subject to examination under the FITF provisions, and MPEP § 2131–MPEP § 2138 for examination of applications subject to pre-AIA 35 U.S.C. 102.]

In accordance with 37 CFR 1.130, the applicant or patent owner may submit an affidavit or declaration. When an assignee, obligated assignee, or person showing sufficient proprietary interest is the applicant under 35 U.S.C. 118 rather than the inventor, the inventor may sign an affidavit or declaration under 37 CFR 1.130 to except subject matter in a disclosure of the invention as prior art, but the 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.