What happens to a patent application if an inventor dies after filing but before issuance?
If an inventor dies after filing a patent application but before the patent is granted, the process can still continue. According to 37 CFR 1.42 (pre-AIA):
“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.”
However, MPEP 409.01(b) clarifies that the intervention of the executor or administrator is 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or administrator should intervene, but the allowance of the application will not be withheld nor the application withdrawn from issue if the executor or administrator does not intervene.”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 means that while it’s advisable for the legal representative to intervene, the patent application can still proceed to allowance or issuance even without such intervention.
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