Attorney Declaration in Support of Summary Judgment Motion
(Patent Invalidity)

Summary

This template may be used for an attorney declaration in support of a summary judgment motion of patent invalidity under Fed. R. Civ. P. 56 to introduce evidence referenced in the motion brief or supporting expert declaration. This template includes practical guidance and drafting notes. For a template for a summary judgment brief on obviousness, see Summary Judgment Motion Brief (Obviousness). For an expert declaration template, see Expert Declaration (Obviousness). Attorney declarations are commonly used to submit documentary evidence as exhibits in support of briefs or to make certain facts of record. In federal court, declarations are a convenient alternative to affidavits because, unlike affidavits, declarations do not have to be sworn before a notary. Instead, pursuant to 28 U.S.C. § 1746, the declarant states, under penalty of perjury, that the contents of the declaration are true and correct. Since the patent is usually attached to the complaint, it is already part of the pleadings. If the patent is the only evidence that you cite in the summary judgment motion brief, there is no need for an attorney declaration, and you may attach the patent as an exhibit to the brief itself. However, if, as is typically the case in an invalidity motion, you rely on other items of evidence in your brief, these items should be introduced into evidence as exhibits to an attorney declaration. Such items may include, for example, excerpts from the prosecution history and the prior art references cited in the motion brief and expert declaration. An attorney declaration may also serve to apprise the court of other relevant information, such as the fact that the parties conferred to try to narrow the issues to be addressed in the motion. If the parties reached agreement on an issue relevant to the subject matter of the motion, the declaration could recite the agreement.