Comments on: Q) Death of inventor before application is filed (MPEP 400)

By: RT

RT — Fri, 11 May 2012 16:39:26 +0000

Got it 5-10-12.

Picked Barbara.

By: verty

verty — Sat, 07 Apr 2012 16:36:03 +0000

Disregard what I said. I am wrong.

By: Miranda

Miranda — Sat, 07 Apr 2012 05:23:53 +0000

“37 CFR 1.47 should not be considered an alternative to 37 CFR 1.42 or 35 U.S.C. 117 since the language ‘cannot be found or reached after diligent effort’ has no reasonable application to a deceased inventor… However, 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)).”

By: Sol

Sol — Sat, 07 Apr 2012 04:03:56 +0000

Strictly on the language, 1.47(b) is not the basis because 1.47 is about “refuse to execute an application for patent, or cannot be found or reached after diligent effort”. Well, I do base my guess on the spirit of 1.47(b).

Rules do differentiate “death” from “cannot be found or reached after diligent effort”; otherwise, there would be no a separate 1.42.

By: verty

verty — Sat, 07 Apr 2012 01:50:08 +0000

1.47(b) would be the rule for that.

By: Sol

Sol — Sat, 07 Apr 2012 01:34:50 +0000

what if the dead is the sole inventor, no legal representative, can someone with sufficient proprietary interest apply for the patent? I guess yes, but cannot find support.

By: TheGhostOfBilski

TheGhostOfBilski — Fri, 06 Apr 2012 19:35:19 +0000

I agree and am not aware of any specific time limit that would matter. In a scenario where a long period of time has passed since death of the inventor, the administrator or executor may have long since been discharged. In this case, if the administrator/executor is the relevant entity to make the necessary oaths, “it is necessary for the legal admin 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.” MPEP 409.01(c).

However, if a legal rep is not available (after searching with diligent effort), the co-inventor could sign, and include the last known address of the deceased inventor’s legal rep. MPEP 409.03(c).

By: TheGhostOfBilski

TheGhostOfBilski — Fri, 06 Apr 2012 19:24:56 +0000

confirmed, patent attorney can continue prosecuting b/c had part interest

By: Miranda

Miranda — Wed, 28 Mar 2012 23:47:55 +0000

I would think that the answer would be the same as if he died the day before the application is filed- that the legal representative would have to make the necessary oaths under 37 CFR 1.42.
someone correct me if i’m wrong.

By: AS

AS — Wed, 28 Mar 2012 21:37:25 +0000

Under what circumstances can a person who died 17 years before a patent application is filed be listed as a co-inventor?