How can a joint inventor apply for a patent if another joint inventor is deceased or legally incapacitated?

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.

If a joint inventor is deceased or legally incapacitated, the other joint inventor(s) can still apply for a patent by following these steps:

• File the application naming the deceased or legally incapacitated inventor
• Submit a statement identifying the unavailable inventor and their last known address
• Show that the signing inventor is obligated to assign the patent to the same entity as the unavailable inventor, or has sufficient proprietary interest
• Submit the oath or declaration by the available inventor(s)

As stated in MPEP 409.01(a): “In the case of a deceased or legally incapacitated joint inventor, the applicant should identify the unavailable inventor on an application data sheet (ADS) or a substitute statement.”

This process allows the patent application to move forward despite the unavailability of one of the joint inventors.