Once your patent examiner has made out a prima facie case of obviousness in your case, the burden shift to you to show nonobviousness by presenting evidence of secondary considerations. Such “secondary considerations” include things like “unexpected results” or  “commercial success”  of your invention. 37 CFR 1.132 affidavits/declarations are the way to go to get such evidence before your examiner.

Anyone can make a 37 CFR 1.132 declarations. However, you should submit such a declaration before receiving a final office action in your case (i.e., submit right after receiving your 1st Office Action).

Some key points to keep in mind as you draft a 37 CFR 1.132 declaration are the following:

(1) Support your affidavit with factual evidence rather than bare arguments. For example, if you are arguing that your invention has “unexpected results” you should provide test results which compare your invention to the closest prior art being applied against you.

(2) Establish a nexus between your claimed features of your invention and the secondary consideration. For example, if you are arguing that your invention is nonobviousn due to commercial success, make sure that your declaration that such commercial success is actually due to your claimed features rather than as a result of some other feature like advertising of your invention.