Death of inventor
From Patentbarquestions
Q) Dead Inventors (10.02.30a)
30. In accordance with the MPEP, and USPTO rules and procedure, a patent application may be made by someone other than
the inventor in certain situations. In which of the following situations would an application not be properly made by someone
other than the inventor?
(A) The inventor is deceased, and the application is made by the legal representative of the deceased inventor.
(B) The inventor is deceased, and the application is made by one who has reason to believe that he or she will be
appointed legal representative of the deceased inventor.
(C) The inventor is a minor (under age 18) who understands and is willing to execute the declaration, but the
application is made by the minor’s legal representative.
(D) The inventor is insane, and the application is made by the legal representative of the insane inventor.
(E) The inventor is legally incapacitated, and the application is made by the legal representative of the legally
incapacitated inventor.
30. Answer: All answers accepted.
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.
