35 U.S.C. · Part II · Chapter 11, Application for patent

35 U.S.C. 115: Inventor’s oath or declaration

In plain English

Every inventor named in a nonprovisional application, or in a PCT application entering the US national stage, must sign an oath or declaration. Under section 115(b) it states two things: that the application was made or authorized by the person signing, and that the person believes they are the original inventor or an original joint inventor of a claimed invention. It must also acknowledge that a willful false statement is punishable under 18 U.S.C. 1001 by fine or up to 5 years in prison (section 115(i)).

When an inventor cannot or will not sign, the applicant can file a substitute statement instead (section 115(d)). It is allowed where the inventor has died, is under legal incapacity, cannot be found or reached after diligent effort, or is under an obligation to assign the invention but refuses to sign. An assignment that contains the required statements can also serve as the declaration (section 115(e)).

The oath or declaration does not have to be filed with the application. Section 115(f) sets the outer limit: no later than the date the issue fee is paid. Section 115(h) lets anyone who made a statement withdraw, replace or correct it at any time, and a patent is not invalid or unenforceable for a failure under section 115 that is remedied that way.

Annotation by Raj Sutariya, Co-founder, PatentAssist.ai. General information, not legal advice; the statute below governs.

AIA and pre-AIA

Before the AIA, the oath had to be made by the inventor in almost every case and stated that the inventor believed themselves to be the first inventor. The AIA version, in force for applications filed on or after September 16, 2012, dropped “first”, allowed substitute statements and combined declarations and assignments, and moved the deadline back to payment of the issue fee.

Text of 35 U.S.C. 115

Current text, quoted from the official United States Code.

(a) Naming the Inventor; Inventor’s Oath or Declaration.— An application for patent that is filed under section 111(a) or commences the national stage under section 371 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.— The applicant for patent shall provide each required oath or declaration under subsection (a), substitute statement under subsection (d), or recorded assignment meeting the requirements of subsection (e) no later than the date on which the issue fee for the patent is paid.
(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 that claims the benefit under section 120, 121, 365(c), or 386(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).
(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 1001 of title 18 by fine or imprisonment of not more than 5 years, or both.

Practical notes

Collect signed declarations at filing, while every inventor is still reachable. A former employee who has left on bad terms is the usual reason for a substitute statement, and preparing one takes more work than a signature (37 CFR 1.64).

A continuing application can reuse the declaration from its parent, so no newly signed declaration is needed for an inventor who signed one in the earlier application (37 CFR 1.63(d)). Keep a copy of the parent's declarations in the file.

If inventorship changes during prosecution, any newly named inventor must provide a declaration. Use the application data sheet to correct the inventor list under 37 CFR 1.48, then file the missing declarations before the issue fee is paid.

Related rules and guidance

37 CFR: § 1.53, § 1.63, § 1.64, § 1.76
MPEP: 602