PTAB Provides Guidance On Rule 132 Declaration Sufficiency

The United States Patent and Trademark Office (USPTO) has recently provided additional guidance to Examiners on the consideration of factual evidence provided in the form of a Declaration under 37 C.F.R. § 1.132 ("Rule 132 declaration"). Understanding these guidelines and the overall utility of Rule 132 declarations is an important tool for practitioners to rebut a prima facie case of obviousness. A Rule 132 declaration is recommended for the introduction of evidence to the record when the evidence to be provided is "on a basis not otherwise provided for" in the application.¹ In these practitioners' views, Rule 132 declarations should be considered in many, if not a majority, of chemical-related cases. Historically, many practitioners have argued against the use of Rule 132 declarations because of litigation worries (such as inequitable conduct findings for inaccurate / misleading declarations). However, so long as reasonable due diligence is done when obtaining the