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).
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. 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 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.
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.
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. 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.
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. 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.
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:
 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).
 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).