Office Finds the Inventor’s Oath or Declaration Defective
Ninth Edition of the MPEP, Revision 10.2019, Last Revised in June 2020
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602.03 Office Finds the Inventor’s Oath or Declaration Defective [R-07.2015]
Examiners are no longer required to review inventor’s oaths or declarations that are filed in non-reissue applications. Non-examiner staff will review inventor’s oaths or declarations that are filed before allowance of an application for compliance with 37 CFR 1.63 or 1.64 and may send an informational notice to the applicant regarding any deficiencies. Similarly, non-examiner staff will review inventor’s oaths or declarations at or after allowance of an application for compliance with 37 CFR 1.63 or 1.64 and will send a requirement to the applicant to correct any deficiencies. If an application data sheet has been submitted, applicant may postpone the filing of the inventor’s oath or declaration until the application is in condition for allowance for applications filed on or after September 16, 2012. If an oath or declaration in compliance with 37 CFR 1.63, or a substitute statement in compliance with 37 CFR 1.64, executed by or with respect to each inventor has not been submitted at the time of allowance, a notice requiring the inventor’s oath or declaration may be sent with the Notice of Allowability. The required inventor’s oath or declaration must be submitted no later than the date on which the issue fee is paid. See 35 U.S.C. 115(f).
The Office does not check the date of execution of the oath or declaration and will not require a newly executed oath or declaration based on an oath or declaration being stale (i.e., when the date of execution is more than three months prior to the filing date of the application) or where the date of execution has been omitted. However, applicants are reminded that they have a continuing duty of disclosure under 37 CFR 1.56.
The wording of an oath or declaration should not be amended, altered or changed in any manner after it has been signed. If the wording is not correct or if all of the required affirmations have not been made, or if it has not been properly subscribed to, a new oath or declaration should be submitted. However, in some cases, a deficiency in the oath or declaration can be corrected by a supplemental paper such as an application data sheet (see 37 CFR 1.76 and MPEP § 601.05) and a new oath or declaration is not necessary. See 37 CFR 1.63(b). For example, if the oath does not set forth evidence that the notary was acting within his or her jurisdiction at the time he or she administered the oath, a certificate of the notary that the oath was taken within his or her jurisdiction will correct the deficiency. See MPEP § 602.
The inventor’s oath or declaration must include certain inventor bibliographic information (see MPEP § 602.08(a)), name the inventor or each joint inventor and except as otherwise provided be signed by each inventor (see MPEP § 602.08(b)), and identify the application to which it is directed (see MPEP § 602.08(c)). See MPEP § 602.04 for a defective foreign executed oath.