Test takers report a question that dealt with an inventor having possession of an invention prior to death – and whether a legal rep. can file application. The fact pattern looked something like:
• A invented a fishing device but passed away before application is filed;
• The heir is 13 years old and legally incapacitated;
Test takers report that the likely correct answer is Barbara, the attorney in living will.
37 CFR 1.42 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.
A second variation of the question is as follows:
• Dead inventor appointed best fried as executor/administrator of will;
• Son thinks that he will be 1 of the heirs of the estate;
• Son wants to go ahead and file for patent application using Dad’s invention;
• The estate is over the minimum sum required by state law for the appointment of administrator.
In this case, the executor/legal representative has to be the one to file application (sign oath, etc.). Heirs can file only if there is no will, or no executor appointed in will and the estate was under the sum required by the state for appointing an executor.
MPEP 409.01(a) Prosecution by Administrator or Executor –
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 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 37 CFR 1.63 and 1.64.
Another reported variation as of 8/10/2007: Death of inventor AFTER application is filed, and AFTER assignment of all rights, BEFORE allowance
MPEP 409.01(e) If Applicant of Assigned Application Dies – When an applicant who has prosecuted an application after assignment, dies, the administrator of the deceased applicant’s estate may carry on the prosecution upon filing letters of administration unless and until the assignee intervenes (MPEP § 402.07).
Variation as of 3/18/2008: Inventor dies after filing application and assigning partial interest to patent attorney. The answer is likely that prosecution may continue without any filing by the inventor’s estate.
MPEP 409.01 Death of Inventor – Unless a power of attorney is coupled with an interest (i.e., an attorney 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. 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 (but see MPEP § 409.01(f)). See also 37 CFR 1.422.