(July 19, 1952, ch. 950, 66 Stat. 799; Pub. L. 97–247, § 14(a),Aug. 27, 1982, 96 Stat. 321; Pub. L. 105–277, div. G, title XXII, § 2222(d),Oct. 21, 1998, 112 Stat. 2681–818; Pub. L. 112–29, § 4(a)(1),Sept. 16, 2011, 125 Stat. 293.)
Amendment of Section
Pub. L. 112–29, § 4(a)(1), (e),Sept. 16, 2011, 125 Stat. 293, 297, provided that, effective upon the expiration of the 1-year period beginning on Sept. 16, 2011, and applicable to any patent application that is filed on or after that effective date, this section is amended to read as follows:
§ 115. Inventor’s oath or declaration
(a) Naming the Inventor; Inventor’s Oath or Declaration.—An application for patent that is filed under section
or commences the national stage under section
shall include, or be amended to include, the name of the inventor for any invention claimed in the application. Except as otherwise provided in this section, each individual who is the inventor or a joint inventor of a claimed invention in an application for patent shall execute an oath or declaration in connection with the application.
(b) Required Statements.—An oath or declaration under subsection (a) shall contain statements that—
(1) the application was made or was authorized to be made by the affiant or declarant; and
(2) such individual believes himself or herself to be the original inventor or an original joint inventor of a claimed invention in the application.
(c) Additional Requirements.—The Director may specify additional information relating to the inventor and the invention that is required to be included in an oath or declaration under subsection (a).
(d) Substitute Statement.—
(1) In general.—In lieu of executing an oath or declaration under subsection (a), the applicant for patent may provide a substitute statement under the circumstances described in paragraph (2) and such additional circumstances that the Director may specify by regulation.
(2) Permitted circumstances.—A substitute statement under paragraph (1) is permitted with respect to any individual who—
(A) is unable to file the oath or declaration under subsection (a) because the individual—
(i) is deceased;
(ii) is under legal incapacity; or
(iii) cannot be found or reached after diligent effort; or
(B) is under an obligation to assign the invention but has refused to make the oath or declaration required under subsection (a).
(3) Contents.—A substitute statement under this subsection shall—
(A) identify the individual with respect to whom the statement applies;
(B) set forth the circumstances representing the permitted basis for the filing of the substitute statement in lieu of the oath or declaration under subsection (a); and
(C) contain any additional information, including any showing, required by the Director.
(e) Making Required Statements in Assignment of Record.—An individual who is under an obligation of assignment of an application for patent may include the required statements under subsections (b) and (c) in the assignment executed by the individual, in lieu of filing such statements separately.
(f) Time for Filing.—A notice of allowance under section
may be provided to an applicant for patent only if the applicant for patent has filed each required oath or declaration under subsection (a) or has filed a substitute statement under subsection (d) or recorded an assignment meeting the requirements of subsection (e).
(g) Earlier-Filed Application Containing Required Statements or Substitute Statement.—
(1) Exception.—The requirements under this section shall not apply to an individual with respect to an application for patent in which the individual is named as the inventor or a joint inventor and who claims the benefit under section 120, 121, or 365(c) of the filing of an earlier-filed application, if—
(A) an oath or declaration meeting the requirements of subsection (a) was executed by the individual and was filed in connection with the earlier-filed application;
(B) a substitute statement meeting the requirements of subsection (d) was filed in connection with the earlier filed application with respect to the individual; or
(C) an assignment meeting the requirements of subsection (e) was executed with respect to the earlier-filed application by the individual and was recorded in connection with the earlier-filed application.
(2) Copies of oaths, declarations, statements, or assignments.—Notwithstanding paragraph (1), the Director may require that a copy of the executed oath or declaration, the substitute statement, or the assignment filed in connection with the earlier-filed application be included in the later-filed application.
(h) Supplemental and Corrected Statements; Filing Additional Statements.—
(1) In general.—Any person making a statement required under this section may withdraw, replace, or otherwise correct the statement at any time. If a change is made in the naming of the inventor requiring the filing of 1 or more additional statements under this section, the Director shall establish regulations under which such additional statements may be filed.
(2) Supplemental statements not required.—If an individual has executed an oath or declaration meeting the requirements of subsection (a) or an assignment meeting the requirements of subsection (e) with respect to an application for patent, the Director may not thereafter require that individual to make any additional oath, declaration, or other statement equivalent to those required by this section in connection with the application for patent or any patent issuing thereon.
(3) Savings clause.—A patent shall not be invalid or unenforceable based upon the failure to comply with a requirement under this section if the failure is remedied as provided under paragraph (1).
See 2011 Amendment note below.
(i) Acknowledgment of Penalties.—Any declaration or statement filed pursuant to this section shall contain an acknowledgment that any willful false statement made in such declaration or statement is punishable under section
by fine or imprisonment of not more than 5 years, or both.
Historical and Revision Notes
Based on Title 35, U.S.C., 1946 ed., § 35 (R.S. 4892, amended (1) Mar. 3, 1903, ch. 1019, § 2,32 Stat. 1225
, 1226, (2) May 23, 1930, ch. 312, § 3,46 Stat. 376
The expression at the end of the second sentence is added to avoid application of the District of Columbia law to oaths taken outside the District.
Changes in language are made.
2011—Pub. L. 112–29
amended section generally. Prior to amendment, text read as follows: “The applicant shall make oath that he believes himself to be the original and first inventor of the process, machine, manufacture, or composition of matter, or improvement thereof, for which he solicits a patent; and shall state of what country he is a citizen. Such oath may be made before any person within the United States authorized by law to administer oaths, or, when, made in a foreign country, 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 is proved by certificate of a diplomatic or consular officer of the United States, or 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, and such oath shall be valid if it complies with the laws of the state or country where made. When the application is made as provided in this title by a person other than the inventor, the oath may be so varied in form that it can be made by him. For purposes of this section, a consular officer shall include any United States citizen serving overseas, authorized to perform notarial functions pursuant to section 1750 of the Revised Statutes, as amended (22
1998—Pub. L. 105–277
inserted at end “For purposes of this section, a consular officer shall include any United States citizen serving overseas, authorized to perform notarial functions pursuant to section 1750 of the Revised Statutes, as amended (22
1982—Pub. L. 97–247
substituted “is” for “shall be” after “whose authority”, and inserted “, or 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”.
Effective Date of 2011 Amendment
Amendment by Pub. L. 112–29
effective upon the expiration of the 1-year period beginning on Sept. 16, 2011, and applicable to any patent application that is filed on or after that effective date, see section 4(e) ofPub. L. 112–29
, set out as a note under section
of this title.
Effective Date of 1982 Amendment
Amendment by Pub. L. 97–247
effective Aug. 27, 1982, see section 17(a) ofPub. L. 97–247
, set out as a note under section
of this title.