MPEP § 409 — MPEP § 409
Current through: 2022-07-01

409-Death, Legal Incapacity, or Unavailability of Inventor 
 
 

 
 
 
 
 
 
 
 

 

 
 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 
 
 
 

 
 
 
 
 
 
 
 
 
 
 

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 Chapter 0400 

 Section 409 
 

 
 
 
 
 
 409 Death, Legal Incapacity, or Unavailability of Inventor [R-11.2013]

 For information regarding applications for patent filed on or
 after September 16, 2012 on behalf of a deceased or legally incapacitated inventor, see
 MPEP §
 409.01(a) . For information regarding applications for patent
 filed on or after September 16, 2012 where the inventor or at least one joint inventor is
 unavailable, see MPEP §§
 409.02 , 604 , and 605 . 
 

 For information regarding applications for patent filed before
 September 16, 2012 on behalf of a deceased inventor or legally incapacitated inventor, see
 MPEP §
 409.01(b) . For information regarding applications for patent
 filed before September 16, 2012 where at least one inventor is unavailable, see
 MPEP §§
 409.03 – 409.03(j) . 
 

 
 409.01 Deceased or Legally Incapacitated Inventor [R-07.2022]

 

 
 409.01(a) Deceased or Legally Incapacitated Inventor - Application
 Filed on or After September 16, 2012 [R-01.2019]
 

 [Editor Note: See MPEP § 409.01(b) for information
 pertaining to a deceased or legally incapacitated inventor in an application filed
 before September 16, 2012.] 

 
 35 U.S.C. 117 
 Death or incapacity of inventor. 

 Legal representatives of deceased inventors and of
 those under legal incapacity may make application for patent upon compliance with
 the requirements and on the same terms and conditions applicable to the
 inventor.
 

 

 
 37 CFR 1.43 Application for patent by a legal representative of a deceased or legally
 incapacitated inventor. 

 If an inventor is deceased or under legal incapacity,
 the legal representative of the inventor may make an application for patent on
 behalf of the inventor. If an inventor dies during the time intervening between
 the filing of the application and the granting of a patent thereon, the letters
 patent may be issued to the legal representative upon proper intervention. See §
 1.64 concerning the execution of a substitute statement by
 a legal representative in lieu of an oath or declaration.
 

 
 I. TERMINATION OF POWER OF ATTORNEY –
 DECEASED INVENTOR Unless a power of attorney is coupled with an
 interest (i.e., a patent practitioner is assignee or part-assignee), the death of
 an inventor who is an applicant party terminates the power of attorney given by
 the deceased inventor in an application filed on or after September 16, 2012. A
 new power from the heirs, administrators, executors, or assignees is necessary if
 the deceased inventor is the sole inventor-applicant or all powers of attorney in
 the application have been terminated. 
 

 II. PROSECUTION BY ASSIGNEE, OBLIGATED
 ASSIGNEE OR SUFFICIENT PROPRIETARY INTEREST PARTY Under 37 CFR 1.46 , a person to whom
 the inventor assigned (“assignee”), to whom the inventor was under an obligation
 to assign (“obligated assignee”), or a person who otherwise shows sufficient
 proprietary interest in the matter may make an application for patent on behalf of
 the deceased or legally incapacitated inventor. See 35 U.S.C.
 118 . If the 37 CFR 1.46 applicant is the
 assignee or obligated assignee of the deceased or legally incapacitated inventor’s
 interest, or a party who showed/can show a sufficient proprietary interest in the
 claimed invention, there is no need to involve the legal representative as the
 37 CFR
 1.46 applicant can execute the substitute statement. See
 MPEP § 409.05 for more information. See
 37 CFR
 1.64 and MPEP § 604 concerning the
 execution of a substitute statement by a 37 CFR 1.46 applicant in lieu
 of an oath or declaration.
 

 III. PROSECUTION BY LEGAL
 REPRESENTATIVE, ADMINISTRATOR OR EXECUTOR If an inventor is deceased or under legal incapacity,
 the legal representative of the inventor may make an application for patent on
 behalf of the inventor. If an inventor dies during the time intervening between
 the filing of the application and the granting of a patent thereon, the letters
 patent may be issued to the legal representative upon proper intervention. See
 35 U.S.C.
 117 . See 37 CFR 1.64 and
 MPEP §
 604 concerning the execution of a substitute statement
 by a legal representative in lieu of an oath or declaration.
 

 Proof of authority of the legal representative of a
 deceased or incapacitated inventor is not required. Although the Office does not
 require proof of authority to be filed, any person acting as a legal
 representative of a deceased or incapacitated inventor should ensure that he or
 she is properly acting in such a capacity.
 

 When an administrator or executor has performed his
 or her functions and has been discharged and it is desired to make an application
 for an invention of the deceased, it is necessary for the administrator or
 executor to take out new letters of administration in order that he or she may
 file a new application for an invention of the deceased inventor.
 

 The terms “Executor” and “Administrator” do not have
 exact counterparts in all foreign countries, and therefore, those terms must be
 construed to fit the circumstances of the case. Hence, the person or persons
 having authority corresponding to that of executor or administrator are permitted
 to make an application. 
 

 IV. PROSECUTION BY SURVIVING JOINT
 INVENTOR-APPLICANTS When an application is being prosecuted by joint
 inventor-applicants without a joint inventor-applicant or patent practitioner
 having been granted a power of attorney, and a joint inventor-applicant dies after
 filing the application, the living joint inventor(s) who are the applicant must
 submit proof that the other joint inventor-applicant is dead. Upon submission of
 such proof, only the signatures of the living joint inventor-applicants are
 required on the papers filed with the USPTO if the legal representative of the
 deceased inventor does not intervene. If the legal representative of the deceased
 inventor wishes to intervene, the legal representative must submit a substitute
 statement in compliance with 37 CFR 1.64 . Once the legal
 representative of the deceased inventor intervenes in the pro se application, the
 signatures of the living joint inventors and the legal representative are required
 on the papers filed with the USPTO, until the legal representative and living
 joint inventors appoint a representative. 
 

 

 
 409.01(b) Deceased or Legally Incapacitated Inventor- Application Filed
 Before September 16, 2012 [R-01.2019]
 

 [Editor Note: See MPEP § 409.01(a) for information
 pertaining to a deceased or legally incapacitated inventor in an application filed
 on or after September 16, 2012.] 

 
 35 U.S.C. 117 
 Death or incapacity of inventor. 

 Legal representatives of deceased inventors and of
 those under legal incapacity may make application for patent upon compliance with
 the requirements and on the same terms and conditions applicable to the
 inventor.
 

 

 
 37 CFR 1.42 (pre-AIA) When the inventor is dead. 

 In case of the death of the inventor, the legal
 representative (executor, administrator, etc.) of the deceased inventor may make
 the necessary oath or declaration, and apply for and obtain the patent. Where the
 inventor dies during the time intervening between the filing of the application
 and the granting of a patent thereon, the letters patent may be issued to the
 legal representative upon proper intervention. 
 

 

 
 37 CFR 1.43 (pre-AIA) When the inventor is insane or legally
 incapacitated. 

 In case an inventor is insane or otherwise legally
 incapacitated, the legal representative (guardian, conservator, etc.) of such
 inventor may make the necessary oath or declaration, and apply for and obtain the
 patent.
 

 
 I. TERMINATION OF POWER OF ATTORNEY – DECEASED INVENTOR Unless a power of attorney is coupled with an
 interest (i.e., a patent practitioner is assignee or part-assignee), the death of
 the inventor (or one of the joint inventors) terminates the power of attorney
 given by the deceased inventor in an application filed before September 16, 2012.
 A new power from the heirs, administrators, executors, or assignees is necessary
 if the deceased inventor is the sole inventor or all powers of attorney in the
 application have been terminated. See also pre-AIA 37 CFR 1.422 .
 

 II. PROSECUTION BY LEGAL REPRESENTATIVE, ADMINISTRATOR OR EXECUTOR When an inventor becomes legally incapacitated prior
 to the filing of an application and prior to executing the oath or declaration
 required by pre-AIA 37 CFR 1.63 and no legal representative has been
 appointed, one must be appointed by a court of competent jurisdiction for the
 purpose of execution of the oath or declaration of the application.
 

 One who has reason to believe that he or she will be
 appointed legal representative of a deceased inventor may apply for a patent as
 legal representative in accordance with pre-AIA 37 CFR 1.42 . 
 

 Application may be made by the heirs of the inventor,
 as such, if there is no will or the will did not appoint an executor and the
 estate was under the sum required by state law for the appointment of an
 administrator. The heirs should identify themselves as the legal representative of
 the deceased inventor in the oath or declaration submitted pursuant to
 pre-AIA 37
 CFR 1.63 and 1.64 .
 

 III. PROOF OF AUTHORITY OF ADMINISTRATOR OR EXECUTOR Proof of authority of the legal representative of a
 deceased or incapacitated inventor is not required. Although the Office does not
 require proof of authority to be filed, any person acting as a legal
 representative of a deceased or incapacitated inventor should ensure that he or
 she is properly acting in such a capacity. 
 

 IV. AFTER ADMINISTRATOR OR EXECUTOR HAS BEEN DISCHARGED When an administrator or executor has performed his
 or her functions and has been discharged and it is desired to make an application
 for an invention of the deceased, it is necessary for the administrator or
 executor to take out new letters of administration in order that he or she may
 file a new application for an invention of the deceased inventor.
 

 V. EXCEPTION IN SOME FOREIGN COUNTRIES The terms “Executor” and “Administrator” do not have
 exact counterparts in all foreign countries, and therefore, those terms must be
 construed to fit the circumstances of the case. Hence, the person or persons
 having authority corresponding to that of executor or administrator are permitted
 to make an application.
 

 VI. IF INVENTOR OF ASSIGNED APPLICATION DIES When an inventor who has prosecuted an application
 after assignment, dies, the administrator of the deceased inventor’s estate may
 carry on the prosecution upon filing letters of administration unless and until
 the assignee intervenes (see MPEP § 402.07 ). 
 

 VII. INTERVENTION OF EXECUTOR NOT COMPULSORY When an inventor dies after filing an application
 and executing the oath or declaration required by pre-AIA 37 CFR
 1.63 , the executor or administrator should intervene, but
 the allowance of the application will not be withheld nor the application
 withdrawn from issue if the executor or administrator does not intervene.
 

 This practice is applicable to an application which
 has been placed in condition for allowance or passed to issue prior to
 notification of the death of the inventor. See MPEP §
 409.01 .
 

 When an application is being prosecuted by joint
 inventors without a joint inventor or patent practitioner having been granted a
 power of attorney, and a joint inventor dies after filing the application, the
 living joint inventor(s) must submit proof that the other joint inventor is dead.
 Upon submission of such proof, only the signatures of the living joint inventors
 are required on the papers filed with the USPTO if the legal representative of the
 deceased inventor does not intervene. If the legal representative of the deceased
 inventor wishes to intervene, the legal representative must submit an oath or
 declaration in compliance with pre-AIA 37 CFR 1.63 and
 1.64 (e.g., stating that he or she is the legal
 representative of the deceased inventor and his or her residence, citizenship and
 post office address). Once the legal representative of the deceased inventor
 intervenes in the pro se application, the signatures of the living joint inventors
 and the legal representative are required on the papers filed with the USPTO.
 

 

 

 
 409.02 Unavailable Joint Inventor – Application Filed on or after
 September 16, 2012 [R-11.2013]
 

 [Editor Note: See MPEP § 409.03 et seq. for information pertaining to the
 unavailability of an inventor in an application filed before September 16,
 2012.] 

 
 37 CFR 1.45 Application for patent by joint inventors. 

 
 (a) Joint inventors must apply for a patent jointly, and each must
 make an inventor's oath or declaration as required by § 1.63 ,
 except as provided for in § 1.64 . If a joint inventor
 refuses to join in an application for patent or cannot be found or reached
 after diligent effort, the other joint inventor or inventors may make the
 application for patent on behalf of themselves and the omitted inventor. See §
 1.64 concerning the execution of a substitute statement
 by the other joint inventor or inventors in lieu of an oath or declaration.
 

 
 *****

 

 Joint inventors must apply for a patent jointly, and each
 joint inventor must make the inventor’s oath or declaration required by
 37 CFR
 1.63 , except as provided for in 37 CFR 1.64 .
 See 35
 U.S.C. 116(a) (“[w]hen an invention is made by two or more persons
 jointly, they shall apply for patent jointly and each make the required oath, except as
 otherwise provided in this title.”). 37 CFR 1.45(a) provides that if a
 joint inventor refuses to join in an application for patent or cannot be found or
 reached after diligent effort, the other joint inventor(s) may make the application for
 patent on behalf of themselves and the omitted inventor. 37 CFR 1.45(a) 
 also cross-references 37 CFR 1.64 concerning the execution
 of a substitute statement by the other joint inventor(s) in lieu of an oath or
 declaration. See MPEP §
 604 for additional information pertaining to substitute
 statements.
 

 

 
 409.03 Unavailability of Inventor – Application Filed Before September
 16, 2012 [R-11.2013]
 

 [Editor Note: MPEP §§ 409.03 – 409.03(j) are not applicable to
 patent applications filed under 35 U.S.C. 111(a) ,
 363 , or 35 U.S.C. 385 on or after
 September 16, 2012. See MPEP § 409.02 for information pertaining to the
 unavailability of a joint inventor in an application filed on or after September 16,
 2012.] 

 
 35 U.S.C. 116 
 (pre-AIA) Inventors. 

 When an invention is made by two or more persons jointly, they shall
 apply for patent jointly and each make the required oath, except as otherwise
 provided in this title. Inventors may apply for a patent jointly even though (1) they
 did not physically work together or at the same time, (2) each did not make the same
 type or amount of contribution, or (3) each did not make a contribution to the
 subject matter of every claim of the patent.
 

 If a joint inventor refuses to join in an application for patent or
 cannot be found or reached after diligent effort, the application may be made by the
 other inventor on behalf of himself and the omitted inventor. The Director, on proof
 of the pertinent facts and after such notice to the omitted inventor as he
 prescribes, may grant a patent to the inventor making the application, subject to the
 same rights which the omitted inventor would have had if he had been joined. The
 omitted inventor may subsequently join in the application.
 

 Whenever through error a person is named in an application for patent
 as the inventor, or through an error an inventor is not named in an application, and
 such error arose without any deceptive intention on his part, the Director may permit
 the application to be amended accordingly, under such terms as he prescribes.
 

 

 
 35 U.S.C. 118 
 (pre-AIA) Filing by other than inventor. 

 Whenever an inventor refuses to execute an application for patent, or
 cannot be found or reached after diligent effort, a person to whom the inventor has
 assigned or agreed in writing to assign the invention or who otherwise shows
 sufficient proprietary interest in the matter justifying such action, may make
 application for patent on behalf of and as agent for the inventor on proof of the
 pertinent facts and a showing that such action is necessary to preserve the rights of
 the parties or to prevent irreparable damage; and the Director may grant a patent to
 such inventor upon such notice to him as the Director deems sufficient, and on
 compliance with such regulations as he prescribes.
 

 

 
 37 CFR 1.47 (pre-AIA) Filing when an inventor refuses to sign or cannot be
 reached. 

 
 (a) If a joint inventor refuses to join in an application for
 patent or cannot be found or reached after diligent effort, the application may
 be made by the other inventor on behalf of himself or herself and the
 nonsigning inventor. The oath or declaration in such an application must be
 accompanied by a petition including proof of the pertinent facts, the fee set
 forth in § 1.17(g) , and the last known
 address of the nonsigning inventor. The nonsigning inventor may subsequently
 join in the application by filing an oath or declaration complying with §
 1.63 .
 

 (b) Whenever all of the inventors refuse to execute an application
 for patent, or cannot be found or reached after diligent effort, a person to
 whom an inventor has assigned or agreed in writing to assign the invention, or
 who otherwise shows sufficient proprietary interest in the matter justifying
 such action, may make application for patent on behalf of and as agent for all
 the inventors. The oath or declaration in such an application must be
 accompanied by a petition including proof of the pertinent facts, a showing
 that such action is necessary to preserve the rights of the parties or to
 prevent irreparable damage, the fee set forth in § 1.17(g) , and the last known address of all of the
 inventors. An inventor may subsequently join in the application by filing an
 oath or declaration complying with § 1.63 .
 

 (c) The Office will send notice of the filing of the application to
 all inventors who have not joined in the application at the address(es)
 provided in the petition under this section, and publish notice of the filing
 of the application in the Official Gazette. The Office may
 dispense with this notice provision in a continuation or divisional
 application, if notice regarding the filing of the prior application was given
 to the nonsigning inventor(s).
 

 
 

 Application papers submitted pursuant to pre-AIA 37 CFR
 1.47 are forwarded by the Office of Patent Application Processing
 (OPAP) to the Office of Petitions for a determination of whether the papers are proper,
 complete, and acceptable under pre-AIA 37 CFR 1.47 and for a
 decision on the petition under pre-AIA 37 CFR 1.47 before the
 application is sent to the Technology Center. Since an application without an oath or
 declaration executed by all of the inventors may be an incomplete application, an
 examiner should not mail an Office action in an application without a fully executed
 oath or declaration under pre-AIA 37 CFR 1.63 unless the
 application has been accorded status under pre-AIA 37 CFR 1.47 in a written
 decision on the petition.
 

 A bona fide attempt must be made to comply with the
 provisions of pre-AIA
 37 CFR 1.47 at the time the oath or declaration is first
 submitted. If the oath or declaration, and evidence submitted with the oath or
 declaration, are not acceptable, the pre-AIA 37 CFR 1.47 applicant will
 be notified of the reasons why the papers are not acceptable. The pre-AIA 37 CFR
 1.47 applicant may request reconsideration and file supplemental
 evidence in a case where a bona fide attempt was made to comply with
 pre-AIA 37 CFR
 1.47 from the outset.
 

 A decision granting a petition under pre-AIA 37 CFR
 1.47 does not alter the ownership interest or title of the
 application. If the nonsigning inventor has not signed an assignment document which has
 been recorded in the USPTO, then the pre-AIA 37 CFR 1.47 applicant (the
 company that files the petition under pre-AIA 37 CFR 1.47(b) and
 establishes proprietary interest in the application) is NOT the assignee of the entire
 interest of the application.
 

 
 409.03(a) At Least One Joint Inventor Available [R-11.2013]

 [Editor Note: This MPEP section is not applicable to
 applications filed on or after September 16, 2012.] 

 Pre-AIA 37 CFR
 1.47(a) and pre-AIA 35 U.S.C. 116 , second
 paragraph, requires all available joint inventors to file an application “on behalf
 of” themselves and on behalf of a joint inventor who “cannot be found or reached
 after diligent effort” or who refuses to “join in an application.” 
 

 In addition to other requirements of law ( pre-AIA 35 U.S.C.
 111(a) and 115 ), an application deposited in
 the U.S. Patent and Trademark Office pursuant to pre-AIA 37 CFR 1.47(a) must meet
 the following requirements:
 

 
 (A) All the available joint inventors must (1) make oath or
 declaration on their own behalf as required by pre-AIA 37 CFR
 1.63 or 1.175 (see
 MPEP
 §§ 602 , 605.01 , 602.09 , and 1414 ) and (2) make oath or
 declaration on behalf of the nonsigning joint inventor as required by
 pre-AIA 37
 CFR 1.64 . An oath or declaration signed by all the
 available joint inventors with the signature block of the nonsigning
 inventor(s) left blank may be treated as having been signed by all the
 available joint inventors on behalf of the nonsigning inventor(s), unless
 otherwise indicated.
 

 (B) The application must be accompanied by proof that the
 nonsigning inventor (1) cannot be found or reached after diligent effort or (2)
 refuses to execute the application papers. See MPEP §
 409.03(d) .
 

 (C) The last known address of the nonsigning joint inventor must be
 stated. See MPEP
 § 409.03(e) .
 

 
 

 
 409.03(b) No Inventor Available [R-08.2012]

 [Editor Note: This MPEP section is not applicable to
 applications filed on or after September 16, 2012.] 

 Filing under pre-AIA 37 CFR 1.47(b) and
 pre-AIA 35
 U.S.C. 118 is permitted only when no inventor is available to
 make application. These provisions allow a “person” with a demonstrated proprietary
 interest to make application “on behalf of and as agent for” an inventor who “cannot
 be found or reached after diligent effort” or who refuses to sign the application
 oath or declaration. The word “person” has been construed by the U.S. Patent and
 Trademark Office to include juristic entities, such as a corporation. Where
 pre-AIA 37 CFR
 1.47(a) is available, application cannot be made under
 pre-AIA 37 CFR
 1.47(b) . 
 

 In addition to other requirements of law ( pre-AIA 35 U.S.C.
 111(a) and 115), an application deposited pursuant to
 pre-AIA 37 CFR
 1.47(b) must meet the following requirements:
 

 
 (A) The pre-AIA 37 CFR 1.47(b) 
 applicant must make the oath required by pre-AIA 37 CFR 1.63 and
 1.64 or 1.175. Where a corporation is the pre-AIA 37 CFR 1.47(b) 
 applicant, an officer (President, Vice-President, Secretary, Treasurer, or
 Chief Executive Officer) thereof should normally sign the necessary oath or
 declaration. A corporation may authorize any person, including an attorney or
 agent registered to practice before the U.S. Patent and Trademark Office, to
 sign the application oath or declaration on its behalf. Where an oath or
 declaration is signed by a registered attorney or agent on behalf of a
 corporation, either proof of the attorney's or agent's authority in the form of
 a statement signed by an appropriate corporate officer must be submitted, or
 the attorney or agent may simply state that he or she is authorized to sign on
 behalf of the corporation. Where the oath or declaration is being signed on
 behalf of an assignee, see MPEP § 324 . An inventor may
 not authorize another individual to act as his or her agent to sign the
 application oath or declaration on his or her behalf.
 Staeger v. Commissioner, 189 USPQ 272 (D.D.C. 1976), In re
 Striker, 182 USPQ 507 (Comm'r Pat. 1973). Where an application is
 executed by one other than the inventor, the declaration required by
 pre-AIA 37
 CFR 1.63 must state the full name, residence, post office
 address, and citizenship of the nonsigning inventor. Also, the title or
 position of the person signing must be stated if signing on behalf of a
 corporation under pre-AIA 37 CFR 1.47(b) .
 

 (B) The pre-AIA 37 CFR 1.47(b) 
 applicant must state his or her relationship to the inventor as required by
 pre-AIA
 37 CFR 1.64 .
 

 (C) The application must be accompanied by proof that the inventor
 (1) cannot be found or reached after a diligent effort or (2) refuses to
 execute the application papers. See MPEP § 409.03(d) .
 

 (D) The last known address of the inventor must be stated. See
 MPEP §
 409.03(e) .
 

 (E) The pre-AIA 37 CFR 1.47(b) 
 applicant must make out a prima facie case (1) that the
 invention has been assigned to him or her or (2) that the inventor has agreed
 in writing to assign the invention to him or her or (3) otherwise demonstrate a
 proprietary interest in the subject matter of the application. See
 MPEP
 § 409.03(f) .
 

 (F) The pre-AIA 37 CFR 1.47(b) 
 applicant must prove that the filing of the application is necessary (1) to
 preserve the rights of the parties or (2) to prevent irreparable damage. See
 MPEP §
 409.03(g) .
 

 
 

 
 409.03(c) Unavailable Legal Representative of Deceased Inventor [R-11.2013]

 [Editor Note: This MPEP section is not applicable to
 applications filed on or after September 16, 2012.] 

 Pre-AIA 37 CFR
 1.47 should not be considered an alternative to
 pre-AIA 37 CFR
 1.42 or pre-AIA 35 U.S.C. 117 since the
 language “cannot be found or reached after diligent effort” has no reasonable
 application to a deceased inventor. In re Application Papers Filed September
 10, 1954, 108 USPQ 340 (Comm’r Pat. 1955). See pre-AIA 37 CFR
 1.42 and MPEP § 409.01 . However,
 pre-AIA 37 CFR
 1.47 does apply where a known legal representative of a
 deceased inventor cannot be found or reached after diligent effort, or refuses to
 make application. In such cases, the last known address of the legal representative
 must be given (see MPEP
 § 409.03(e) ).
 

 

 
 409.03(d) Proof of Unavailability or Refusal [R-07.2015]

 [Editor Note: This MPEP section is not applicable to
 applications filed on or after September 16, 2012.] 

 I. INVENTOR CANNOT BE REACHED Where inability to find or reach a nonsigning inventor “after
 diligent effort” is the reason for filing under pre-AIA 37 CFR
 1.47 , a statement of facts should be submitted that fully
 describes the exact facts which are relied on to establish that a diligent effort
 was made.
 

 The fact that a nonsigning inventor is on vacation or out of town
 and is therefore temporarily unavailable to sign the declaration is
 not an acceptable reason for filing under
 pre-AIA 37
 CFR 1.47 .
 

 Furthermore, the fact that an inventor is hospitalized and/or is
 not conscious is not an acceptable reason for filing under pre-AIA 37 CFR
 1.47 . Pre-AIA 37 CFR 1.43 may be
 available under these circumstances. See MPEP § 409.01(b) . Such a petition
 under pre-AIA 37
 CFR 1.47 will be dismissed as inappropriate. 
 

 The statement of facts must be signed, where at all possible, by a
 person having firsthand knowledge of the facts recited therein. Statements based
 on hearsay will not normally be accepted. Copies of documentary evidence such as
 Internet searches, certified mail return receipts, cover letters of instructions,
 telegrams, that support a finding that the nonsigning inventor could not be found
 or reached should be made part of the statement. The steps taken to locate the
 whereabouts of the nonsigning inventor should be included in the statement of
 facts. It is important that the statement contain facts as opposed to
 conclusions.
 

 II. REFUSAL TO JOIN A refusal by an inventor to sign an oath or declaration when the
 inventor has not been presented with the application papers does not itself
 suggest that the inventor is refusing to join the application unless it is clear
 that the inventor understands exactly what he or she is being asked to sign and
 refuses to accept the application papers. A copy of the application papers should
 be sent to the last known address of the nonsigning inventor, or, if the
 nonsigning inventor is represented by counsel, to the address of the nonsigning
 inventor’s attorney. The fact that an application may contain proprietary
 information does not relieve the pre-AIA 37 CFR 1.47 applicant
 of the responsibility to present the application papers to the inventor if the
 inventor is willing to receive the papers in order to sign the oath or
 declaration. It is noted that the inventor may obtain a complete copy of the
 application, unless the inventor has assigned his or her interest in the
 application, and the assignee has requested that the inventor not be permitted
 access. See MPEP §
 106 . It is reasonable to require that the inventor be
 presented with the application papers before a petition under pre-AIA 37 CFR
 1.47 is granted since such a procedure ensures that the
 inventor is apprised of the application to which the oath or declaration is
 directed. In re Gray, 115 USPQ 80 (Comm’r Pat. 1956). 
 

 Where a refusal of the inventor to sign the application papers is
 alleged, the circumstances of the presentation of the application papers and of
 the refusal must be specified in a statement of facts by the person who presented
 the inventor with the application papers and/or to whom the refusal was made.
 Statements by a party not present when an oral refusal is made will not be
 accepted.
 

 Proof that a bona fide attempt was made to
 present a copy of the application papers (specification, including claims,
 drawings, and oath or declaration) to the nonsigning inventor for signature, but
 the inventor refused to accept delivery of the papers or expressly stated that the
 application papers should not be sent, may be sufficient. When there is an express
 oral refusal, that fact along with the time and place of the refusal must be
 stated in the statement of facts. When there is an express written refusal, a copy
 of the document evidencing that refusal must be made part of the statement of
 facts. The document may be redacted to remove material not related to the
 inventor’s reasons for refusal.
 

 When it is concluded by the pre-AIA 37 CFR 1.47 applicant
 that a nonsigning inventor’s conduct constitutes a refusal, all facts upon which
 that conclusion is based should be stated in the statement of facts in support of
 the petition or directly in the petition. If there is documentary evidence to
 support facts alleged in the petition or in any statement of facts, such evidence
 should be submitted. Whenever a nonsigning inventor gives a reason for refusing to
 sign the application oath or declaration, that reason should be stated in the
 petition. See also MPEP § 1702 .
 

 

 
 409.03(e) Statement of Last Known Address [R-08.2012]

 [Editor Note: This MPEP section is not applicable to
 applications filed on or after September 16, 2012.] 

 An application filed pursuant to pre-AIA 37 CFR 1.47 must state
 the last known address of the nonsigning inventor.
 

 That address should be the last known address at which the inventor
 customarily receives mail. See MPEP § 602.08(a) . Ordinarily, the
 last known address will be the last known residence of the nonsigning inventor.
 

 Inasmuch as a nonsigning inventor is notified that an application
 pursuant to pre-AIA
 37 CFR 1.47 has been filed on his or her behalf, other
 addresses at which the nonsigning inventor may be reached should also be given.
 

 

 
 409.03(f) Proof of Proprietary Interest [R-08.2012]

 [Editor Note: This MPEP section is not applicable to
 applications filed on or after September 16, 2012. See MPEP §§
 325 , 409.05 , and 605 for information pertaining to applications for
 patent filed on or after September 16, 2012 by an assignee, obligated assignee, or
 a person who otherwise shows sufficient proprietary interest in the
 matter.] 

 When an application is deposited pursuant to pre-AIA 37 CFR
 1.47(b) , the pre-AIA 37 CFR 1.47(b) applicant
 must prove that 
 

 
 (A) the invention has been assigned to the applicant, or 

 (B) the inventor has agreed in writing to assign the invention to
 the applicant, or 
 

 (C) the applicant otherwise has sufficient proprietary interest in
 the subject matter to justify the filing of the application.
 

 
 If the application has been assigned, a copy of the assignment (in
 the English language) must be submitted. The assignment must clearly indicate that
 the invention described in the pre-AIA 37 CFR 1.47(b) 
 application was assigned to the pre-AIA 37 CFR 1.47(b) applicant.
 A statement under pre-AIA 37 CFR 3.73(b) by the assignee must also be submitted
 (see MPEP §
 324 ). An assignment of an application and any “reissue,
 division, or continuation of said application” does not itself establish an
 assignment of a continuation-in-part application. In re Gray, 115
 USPQ 80 (Comm’r Pat. 1956). An assignment to a pre-AIA 37 CFR 1.47(b) applicant
 for the sole purpose of obtaining a filing date for a pre-AIA 37 CFR
 1.47(b) application is not considered an assignment within the
 meaning of pre-AIA
 35 U.S.C. 118 and pre-AIA 37 CFR 1.47(b) .
 

 When an inventor has agreed in writing to assign an invention
 described in an application deposited pursuant to pre-AIA 37 CFR 1.47(b) , a copy of
 that agreement should be submitted. If an agreement to assign is dependent on certain
 specified conditions being met, it must be established by a statement of facts by
 someone with first hand knowledge of the circumstances in which those conditions have
 been met. A typical agreement to assign is an employment agreement where an employee
 (nonsigning inventor) agrees to assign to his or her employer ( pre-AIA 37 CFR
 1.47(b) applicant) all inventions made during employment. When
 such an agreement is relied on, it must be established by a statement of a person
 having firsthand knowledge of the facts that the invention was made by the employee
 while employed by the pre-AIA 37 CFR 1.47(b) 
 applicant.
 

 If the invention has not been assigned, or if there is no written
 agreement to assign, the pre-AIA 37 CFR 1.47(b) applicant
 must demonstrate that he or she otherwise has a sufficient proprietary interest in
 the matter.
 

 A proprietary interest obtained other than by assignment or agreement
 to assign may be demonstrated by an appropriate legal memorandum to the effect that a
 court of competent jurisdiction (federal, state, or foreign) would by the weight of
 authority in that jurisdiction award title of the invention to the pre-AIA 37 CFR
 1.47(b) applicant. The facts in support of any conclusion that
 a court would award title to the pre-AIA 37 CFR 1.47(b) applicant
 should be made of record by way of an affidavit or declaration of the person having
 firsthand knowledge of same. The legal memorandum should be prepared and signed by an
 attorney at law familiar with the law of the jurisdiction involved. A copy (in the
 English language) of a statute (if other than the United States statute) or a court
 decision (if other than a reported decision of a federal court or a decision reported
 in the United States Patents Quarterly) relied on to demonstrate a proprietary
 interest should be made of record.
 

 

 
 409.03(g) Proof of Irreparable Damage [R-11.2013]

 [Editor Note: This MPEP section is not applicable to
 applications filed on or after September 16, 2012.] 

 Irreparable damage may be established by a pre-AIA 37 CFR
 1.47(b) applicant by a showing (a statement) that a filing date
 is necessary to preserve the rights of the party or to prevent irreparable damage.
 
 

 

 
 409.03(h) Processing and Acceptance of a Pre-AIA 37 CFR 1.47
 Application [R-08.2012]
 

 [Editor Note: This MPEP section is not applicable to
 applications filed on or after September 16, 2012.] 

 A filing date is assigned to an application deposited pursuant to
 pre-AIA 37 CFR
 1.47 provided the requirements of 37 CFR 1.53(b) 
 are met. A filing receipt will be sent to the applicant and the application , or an
 electronic message concerning the petition under pre-AIA 37 CFR 1.47 , will be
 forwarded to the Office of Petitions, for consideration of the petition filed under
 pre-AIA 37 CFR
 1.47 .
 

 When papers deposited pursuant to pre-AIA 37 CFR 1.47 are found
 acceptable, the Office of Petitions enters a decision to that effect in the file. A
 notice will be published in the Official Gazette identifying the
 application number, filing date, the title of the invention and the name(s) of the
 nonsigning inventor(s). The U.S. Patent and Trademark Office will notify the
 nonsigning inventor(s) or, if the inventor is deceased, the legal representative(s),
 of the filing of an application under pre-AIA 37 CFR 1.47 by sending a
 letter to the last known address of the nonsigning inventor(s) or legal
 representative(s). In a continuation or divisional application filed under
 37 CFR
 1.53(b) of an application accorded status under
 pre-AIA 37 CFR
 1.47 , if a copy of a declaration from a prior application and a
 copy of a decision according status under pre-AIA 37 CFR 1.47 are filed as
 permitted by pre-AIA 37 CFR 1.63(d)(3)(i) , the notice will not be repeated.
 See pre-AIA 37 CFR
 1.47(c) . In addition, the notice is not repeated in continued
 prosecution applications filed under 37 CFR 1.53(d) .
 

 

 
 409.03(i) Rights of the Nonsigning Inventor [R-08.2012]

 [Editor Note: This MPEP section is not applicable to
 applications filed on or after September 16, 2012.] 

 The nonsigning inventor (also referred to as an “inventor designee”)
 may protest his or her designation as an inventor. The nonsigning inventor is
 entitled to inspect any paper in the application, order copies thereof at the price
 set forth in 37 CFR
 1.19 , and make his or her position of record in the file
 wrapper of the application. Alternatively, the nonsigning inventor may arrange to do
 any of the preceding through a registered patent attorney or agent.
 

 While the U.S. Patent and Trademark Office will grant the nonsigning
 inventor access to the application, inter partes proceedings will
 not be instituted in a pre-AIA 37 CFR 1.47 case.
 In re Hough, 108 USPQ 89 (Comm'r Pat. 1955). A nonsigning
 inventor is not entitled to a hearing (Cogar v. Schuyler, 464 F.2d
 747, 173 USPQ 389 (D.C. Cir. 1972)), and is not entitled to prosecute the application
 if status under pre-AIA 37 CFR 1.47 has been accorded, or if proprietary
 interest of the pre-AIA 37 CFR 1.47(b) applicant has been shown to the
 satisfaction of the U.S. Patent and Trademark Office.
 

 A nonsigning inventor may join in a pre-AIA 37 CFR
 1.47 application. To join in the application, the nonsigning
 inventor must file an appropriate pre-AIA 37 CFR 1.63 oath or
 declaration. Even if the nonsigning inventor joins in the application, he or she
 cannot revoke or give a power of attorney without agreement of the 37 CFR 1.47 
 applicant. See MPEP §
 402.10 .
 

 The rights of a nonsigning inventor are protected by the fact that
 the patent resulting from an application filed under pre-AIA 37 CFR
 1.47(b) and pre-AIA 35 U.S.C. 118 must issue
 to the inventor, and in an application filed under pre-AIA 37 CFR
 1.47(a) and 35 U.S.C. 116 , the inventor has
 the same rights that he or she would have if he or she had joined in the application.
 In re Hough, 108 USPQ 89 (Comm'r Pat. 1955).
 

 If a nonsigning inventor feels that he or she is the sole inventor of
 an invention claimed in a pre-AIA 37 CFR 1.47 application
 naming him or her as a joint inventor, the nonsigning inventor may file his or her
 own application and request that his or her application be placed in interference
 with the pre-AIA 37
 CFR 1.47 application. If the claims in both the nonsigning
 inventor's application and the pre-AIA 37 CFR 1.47 application
 are otherwise found allowable, an interference may be declared.
 

 

 
 409.03(j) Action Following Acceptance of a Pre-AIA 37 CFR 1.47
 Application [R-11.2013]
 

 [Editor Note: This MPEP section is not applicable to
 applications filed on or after September 16, 2012.] 

 After an application deposited pursuant to pre-AIA 37 CFR
 1.47 is found acceptable by the Office, the examiner will act
 on the application in the usual manner. Papers filed by an inventor who did not
 originally join in the application, and papers relating to its pre-AIA 37 CFR
 1.47 status, will be placed in the file wrapper. 
 

 In the event the previously nonsigning inventor decides to join in
 the application by filing an executed oath or declaration complying with
 pre-AIA 37 CFR
 1.63 , the oath or declaration will be placed in the application
 file.
 

 When an examiner receives an application in which a petition under
 pre-AIA 37 CFR
 1.47 has been filed, he or she must check the file to determine
 that the petition has been decided by the Office of Petitions. If the petition has
 not been decided by the Office of Petitions, the application, or an electronic
 message concerning the petition, must be forwarded to the Office of Petitions for
 appropriate action.
 

 An application filed under pre-AIA 37 CFR 1.47 can be
 published as a Statutory Invention Registration (provided the request for a Statutory
 Invention Registration was filed before March 16, 2013).
 

 

 

 
 409.04 [Reserved]

 

 

 
 409.05 Application For Patent by an Assignee, Obligated
 Assignee, or a Person Who Otherwise Shows Sufficient Proprietary Interest – Application
 Filed On or After September 16, 2012 [R-10.2019]
 

 [Editor Note: This MPEP section is only applicable to applications
 filed on or after September 16, 2012.] 

 
 37 CFR 1.46 Application for patent by an assignee, obligated assignee, or a person who
 otherwise shows sufficient proprietary interest in the matter. 

 
 (a) A person to whom the inventor has assigned or is
 under an obligation to assign the invention may make an application for patent.
 A person who otherwise shows sufficient proprietary interest in the matter may
 make an application for patent on behalf of and as agent for the inventor on
 proof of the pertinent facts and a showing that such action is appropriate to
 preserve the rights of the parties.
 

 (b) If an application under 35 U.S.C.
 111 is made by a person other than the inventor under
 paragraph (a) of this section, the application must contain an application data
 sheet under § 1.76 specifying in the
 applicant information section (§ 1.76(b)(7) ) the assignee,
 person to whom the inventor is under an obligation to assign the invention, or
 person who otherwise shows sufficient proprietary interest in the matter. If an
 application entering the national stage under 35 U.S.C.
 371 , or a nonprovisional international design
 application, is applied for by a person other than the inventor under paragraph
 (a) of this section, the assignee, person to whom the inventor is under an
 obligation to assign the invention, or person who otherwise shows sufficient
 proprietary interest in the matter must have been identified as the applicant
 for the United States in the international stage of the international
 application or as the applicant in the publication of the international
 registration under Hague Agreement Article 10(3).
 
 (1) If the applicant is the assignee or a
 person to whom the inventor is under an obligation to assign the
 invention, documentary evidence of ownership (e.g., assignment for an
 assignee, employment agreement for a person to whom the inventor is under
 an obligation to assign the invention) should be recorded as provided for
 in part 3 of this chapter no later than the date the issue fee is paid in
 the application.
 

 (2) If the applicant is a person who otherwise
 shows sufficient proprietary interest in the matter, such applicant must
 submit a petition including:
 
 (i) The fee set forth in §
 1.17(g) 

 (ii) A showing that such person has
 sufficient proprietary interest in the matter; and
 

 (iii) A statement that making the
 application for patent by a person who otherwise shows sufficient
 proprietary interest in the matter on behalf of and as agent for
 the inventor is appropriate to preserve the rights of the
 parties.
 

 *****

 
 

 
 

 
 

 

 
 37 CFR 1.64 Substitute statement in lieu of an oath or declaration. 

 
 (a) An applicant under § 1.43 ,
 1.45 or 1.46 may execute a
 substitute statement in lieu of an oath or declaration under §
 1.63 if the inventor is deceased, is under a legal
 incapacity, has refused to execute the oath or declaration under §
 1.63 , or cannot be found or reached after diligent
 effort.
 

 (b) A substitute statement under this section
 must:
 
 (1) Comply with the requirements of §
 1.63(a) , identifying the inventor or joint
 inventor with respect to whom a substitute statement in lieu of an oath
 or declaration is executed, and stating upon information and belief the
 facts which such inventor is required to state;
 

 (2) Identify the person executing the
 substitute statement and the relationship of such person to the inventor
 or joint inventor with respect to whom the substitute statement is
 executed, and unless such information is supplied in an application data
 sheet in accordance with § 1.76 , the residence
 and mailing address of the person signing the substitute statement;
 

 (3) Identify the circumstances permitting the
 person to execute the substitute statement in lieu of an oath or
 declaration under § 1.63 , namely whether
 the inventor is deceased, is under a legal incapacity, cannot be found or
 reached after a diligent effort was made, or has refused to execute the
 oath or declaration under § 1.63 ; and
 

 (4) Unless the following information is
 supplied in an application data sheet in accordance with §
 1.76 , also identify:
 
 (i) Each inventor by his or her legal
 name; and
 

 (ii) The last known mailing address where
 the inventor customarily receives mail, and last known residence,
 if an inventor lives at a location which is different from where
 the inventor customarily receives mail, for each inventor who is
 not deceased or under a legal incapacity.
 

 
 

 *****

 
 

 
 
 I. ASSIGNEE OR OBLIGATED ASSIGNEE An assignee or obligated assignee may file a patent
 application as the applicant. An assignee or obligated assignee doing so should
 record documentary evidence of ownership (e.g., assignment for an assignee,
 employment agreement for an obligated assignee) as provided for in 37 CFR part 3 no
 later than the date the issue fee is paid in the application. See 37 CFR
 1.46(b)(1) . In order to be the sole applicant, the party must
 be the assignee or obligated assignee of all named inventors’ interest. Because all
 parties having any portion of ownership in a patent property must act together as a
 composite entity in patent matters before the Office, a partial assignee (e.g., a
 party who owns 50% of the interest) cannot on its own file a patent application as
 the applicant. See MPEP
 § 301 .
 

 See 37 CFR 1.64 concerning the
 execution of a substitute statement by an assignee or obligated assignee in lieu of
 an inventor’s oath or declaration (available when an inventor is deceased, is under a
 legal incapacity, cannot be found or reached after a diligent effort was made, or has
 refused to execute the oath or declaration under 37 CFR
 1.63 ). See also MPEP § 604 .
 

 II. SUFFICIENT PROPRIETARY INTEREST 37 CFR
 1.46(a) provides that a person who otherwise shows sufficient
 proprietary interest in the matter may make an application for patent on behalf of
 and as agent for the inventor on proof of the pertinent facts and a showing that such
 action is appropriate to preserve the rights of the parties. The ability for a person
 who otherwise shows sufficient proprietary interest in the matter to make an
 application for patent is not limited to situations in which all of the inventors
 refuse to execute the application, or cannot be found or reached after diligent
 effort. 
 

 Section
 1.46(b)(2) provides that if the applicant is a person who
 otherwise shows sufficient proprietary interest in the matter, such applicant must
 submit a petition including: (1) The fee set forth in § 1.17(g) ; (2) a showing that such person has sufficient
 proprietary interest in the matter; and (3) a statement that making the application
 for patent by a person who otherwise shows sufficient proprietary interest on behalf
 of and as agent for the inventor is appropriate to preserve the rights of the
 parties. See 37
 CFR 1.64 concerning the execution of a substitute statement by
 a person who otherwise shows sufficient proprietary interest in the matter in lieu of
 an inventor’s oath or declaration. See also MPEP § 604 . 
 

 A proprietary interest obtained other than by
 assignment or agreement to assign may be demonstrated by an appropriate legal
 memorandum to the effect that a court of competent jurisdiction (federal, state, or
 foreign) would by the weight of authority in that jurisdiction award title of the
 invention to the 37 CFR 1.46 applicant. The facts
 in support of any conclusion that a court would award title to the 37 CFR 1.46 
 applicant should be made of record by way of an affidavit or declaration of the
 person having firsthand knowledge of same. The legal memorandum should be prepared
 and signed by an attorney at law familiar with the law of the jurisdiction involved.
 A copy (in the English language) of a statute (if other than the United States
 statute) or a court decision (if other than a reported decision of a federal court or
 a decision reported in the United States Patents Quarterly) relied on to demonstrate
 a proprietary interest should be made of record. 
 

 

 [top] 

 

 

 
 

 
 

 

 

 

 
 
 
 401-U.S. Patent and Trademark Office Cannot Aid in Selection of Patent Practitioner 

 402-Power of Attorney; Naming Representative 
 402.01-Limited Recognition in Patent Matters 

 402.02-Appointment of Power of Attorney 
 402.02(a)-Appointment in Application Filed On or After September 16, 2012 

 402.02(b)-Appointment in Application Filed Before September 16, 2012 

 
 

 402.03-Signature Requirements for Papers Filed in an Application 

 402.04-Acting in a Representative Capacity 

 402.05-Revocation of Power of Attorney 
 402.05(a)-Applicant Revocation - Application Filed On or After September 16, 2012 

 402.05(b)-Applicant Revocation - Application Filed Before September 16, 2012 

 
 

 402.06-Attorney or Agent Withdraws 

 402.07-Assignee Revocation of Power of Attorney of Applicant and Appointment of New Power of Attorney 

 402.08-Application in Interference or Derivation Proceeding 

 402.09-International Application 

 402.10-Appointment/Revocation by Less Than All Applicants or Owners 

 
 

 403-Correspondence — With Whom Held; Customer Number Practice 
 403.01-Correspondence in Applications 
 403.01(a)-Correspondence in Applications Filed On or After September 16, 2012 

 403.01(b) -Correspondence in Applications Filed Before September 16, 2012 

 
 

 403.02-Two Patent Practitioners for Same Application 

 
 

 404-[Reserved] 

 405-Interviews With Patent Practitioner Not of Record 

 406-Death of Patent Practitioner 

 407-Suspended or Excluded Patent Practitioner 

 408-Interviews With Patent Practitioner of Record 

 409-Death, Legal Incapacity, or Unavailability of Inventor 
 409.01-Deceased or Legally Incapacitated Inventor 
 409.01(a)-Deceased or Legally Incapacitated Inventor - Application Filed on or After September 16, 2012 

 409.01(b)-Deceased or Legally Incapacitated Inventor- Application Filed Before September 16, 2012 

 
 

 409.02-Unavailable Joint Inventor – Application Filed on or after September 16, 2012 

 409.03-Unavailability of Inventor – Application Filed Before September 16, 2012 
 409.03(a)-At Least One Joint Inventor Available 

 409.03(b)-No Inventor Available 

 409.03(c)-Unavailable Legal Representative of Deceased Inventor 

 409.03(d)-Proof of Unavailability or Refusal 

 409.03(e)-Statement of Last Known Address 

 409.03(f)-Proof of Proprietary Interest 

 409.03(g)-Proof of Irreparable Damage 

 409.03(h)-Processing and Acceptance of a Pre-AIA 37 CFR 1.47 Application 

 409.03(i)-Rights of the Nonsigning Inventor 

 409.03(j)-Action Following Acceptance of a Pre-AIA 37 CFR 1.47 Application 

 
 

 409.04-[Reserved] 

 409.05-Application For Patent by an Assignee, Obligated Assignee, or a Person Who Otherwise Shows Sufficient Proprietary Interest
 – Application Filed On or After September 16, 2012 

 
 

 410-Representations to the U.S. Patent and Trademark Office 

 

 

 
 

 
 
 

 
 

 

 
 
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