Can you file an executed declaration in a provisional application?

Question

Attorney wants to get declarations executed with respect to the provisional application, then hold it in the file until utility is filed. This is done in case an inventor leaves the company. Thoughts?

Answer 1

No - You can't file a declaration in a provisional. I guess you can sign something and not file it. The problem is that in a declaration you are swearing to something . Normally you are swearing something about a particular application number or in relation to an attached application. I do not see how that can be done in relation to an application that has not been written (future non provisional utility application) and that you have, of course, not read yet. Inventorship is about claims. What will the claims be? You are potentially swearing now that you are an inventor or joint inventor of a blank check. I think this only can work if the number of the prov. is listed and the prov. has claims and the future non prov. is word for word, coma for coma, identical to the prov. you have in front of you.

If I need to change one word in an application draft after a declaration is signed I tear up the declaration and get a new one signed - although being that strict is probably pre-AIA Sept 16th thinking.

The situation changed somewhat on Sept 16 2012 but you are still swearing with ref. to either an attached application or to an application number.