604 Administration or Execution of Oath
37 C.F.R. 1.66 Officers authorized to administer oaths.
- (a) The 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.
See MPEP § 602.04(a) for foreign executed oath.
604.01 Seal [R-3]
Documents with seals cannot be adequately scanned for retention in an Image File Wrapper, and since the Office maintains patent applications in an image form ** , the Office strongly encourages the use of declarations rather than oaths. 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 in MPEP § 604.03(a), in which situations no seal is necessary. When the issue concerns the authority of the person administering the oath, the examiner should require proof of authority. 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.
See also MPEP § 602.04(a) on foreign executed oath and seal. 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.
¶ 6.06 New Oath for Subject Matter Not Originally Claimed
This application presents a claim for subject matter not originally claimed or embraced in the statement of the invention. . A supplemental oath or declaration is required under 37 CFR 1.67. The new oath or declaration must properly identify the application of which it is to form a part, preferably by application number and filing date in the body of the oath or declaration. See MPEP §§ 602.01 and 602.02.
Explain new claimed matter in bracket 1. The brief summary of the invention must be commensurate with the claimed invention and may be required to be modified. See MPEP § 608.01(d) and 1302, and 37 CFR 1.73.
¶ 6.05.11 Notary Signature
It does not include the notary’s signature, or the notary’s signature is in the wrong place.
This paragraph must be preceded by form paragraph 6.05.
¶ 6.05.12 Notary Seal and Venue Omitted
It does not include the notary’s seal and venue.
This paragraph must be preceded by form paragraph 6.05.
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, must be required. Ex parte Delavoye, 1906 C.D. 320, 124 O.G. 626 (Comm’r Pat. 1906); Ex parte Irwin, 1928 C.D. 13, 367 O.G. 701 (Comm’r Pat. 1928).
Form paragraph 6.07 may be used where the venue is not shown.
¶ 6.07 Lack of Venue
The oath lacks the statement of venue. Applicant is required to furnish either a new oath or declaration in proper form, identifying the application by application number and filing date, or a certificate by the officer before whom the original oath was taken stating that the oath was executed within the jurisdiction of the officer before whom the oath was taken when the oath was administered. The new oath or declaration must properly identify the application of which it is to form a part, preferably by application number and filing date in the body of the oath or declaration. See MPEP §§ 602.01 and 602.02.
Where the seal and venue differ, applicant should be notified by using the “Notice of Informal Application” form.
604.03(a) Notarial Powers of Some Military Officers
Public Law 506 (81st Congress, Second Session) Article 136: (a) The following persons on active duty in the armed forces . . . shall have the general powers of a notary public and of a consul of the United States, in the performance of all notarial acts to be executed by members of any of the armed forces, wherever they may be, and by other persons subject to this code [Uniform Code of Military Justice] outside the continental limits of the United States:
- (A) All judge advocates of the Army and Air Force;
- (B) All law specialists;
- (C) All summary courts-martial;
- (D) All adjutants, assistant adjutants, acting adjutants, and personnel adjutants;
- (E) All commanding officers of the Navy and Coast Guard;
- (F) All staff judge advocates and legal officers, and acting or assistant staff judge advocates and legal officers; and
- (G) All other persons designated by regulations of the armed forces or by statute.
- (H) The signature without seal of any such person acting as notary, together with the title of his office, shall be prima facie evidence of his authority.
On Oct. 15, 1981, the “Hague Convention Abolishing the Requirement of Legalization for Foreign Public Documents” entered into force between the United States and 28 foreign countries as parties to the Convention. Subsequently, additional countries have become parties to the conventions. See MPEP § 604.04(a).
When the oath is made in a foreign country not a member of the Hague Convention Abolishing the Requirement of Legalization for Foreign Public Documents, the authority of any officer other than a diplomatic or consular officer of the United States authorized to administer oaths must be proved by certificate of a diplomatic or consular officer of the United States. See 37 CFR 1.66, MPEP § 604. This proof may be through an intermediary, e.g., the consul may certify as to the authority and jurisdiction of another official who, in turn, may certify as to the authority and jurisdiction of the officer before whom the oath is taken.
604.04(a) Consul – Omission of Certificate
Where the oath is taken before an officer in a foreign country other than a diplomatic or consular officer of the United States and whose authority is not authenticated or accompanied with an apostille certifying the notary’s authority (see MPEP § 602.04(a)), the application is nevertheless accepted for purposes of examination. The examiner, in the first Office action, should note this informality and require ** > a new properly authenticated < oath by an appropriate diplomatic or consular officer, the filing of proper apostille, or a declaration (37 CFR 1.68). > The Office no longer returns improperly authenticated oaths for proper authentication. <
Form paragraph 6.08 may be used to notify applicant.** >
¶ 6.08 Consul-Omission of Certificate
The oath is objected to as being informal. It lacks authentication by a diplomatic or consular officer of the United States; 37 CFR 1.66(a). This informality can be overcome by filing either a declaration under 37 CFR 1.68, or a new properly authenticated oath under 37 CFR 1.66. The new oath or declaration must properly identify the application of which it is to form a part, preferably by application number and filing date in the body of the oath or declaration. See MPEP §§ 602.01 and 602.02.
604.06 By Attorney in Application
The language of 37 CFR 1.66 and 35 U.S.C. 115 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, the proper action is to require a new oath or declaration and refer the file to the Office of Enrollment and Discipline. (Rieggerv.Beierl, 1910 C.D. 12, 150 O.G. 826 (Comm’r Pat. 1910)). See 37 CFR 1.66 and MPEP § 604.