What happens if the legal representative of a deceased inventor is unavailable?

This page is an FAQ based on guidance from the Manual of Patent Examining Procedure. It is provided as guidance, with links to the ground truth sources. This is information only: it is not legal advice.

When the legal representative of a deceased inventor is unavailable, the process depends on whether the application was filed before or after September 16, 2012:

• For applications filed before September 16, 2012: If the legal representative cannot be found or reached after diligent effort, or refuses to make application, pre-AIA 37 CFR 1.47 applies. In such cases, the last known address of the legal representative must be provided.
• For applications filed on or after September 16, 2012: The provisions of pre-AIA 37 CFR 1.47 do not apply. Instead, refer to current USPTO regulations and procedures.

It’s important to note that pre-AIA 37 CFR 1.47 is not an alternative to pre-AIA 37 CFR 1.42 or pre-AIA 35 U.S.C. 117 for deceased inventors. As stated in the MPEP, 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.