What are the requirements for filing a patent application when one joint 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 filing a patent application with at least one unavailable joint inventor under pre-AIA 37 CFR 1.47(a), the following requirements must be met:

• All available joint inventors must make an oath or declaration for themselves and on behalf of the nonsigning inventor.
• Proof must be provided that the nonsigning inventor cannot be found or refuses to execute the application.
• The last known address of the nonsigning inventor must be stated.

As stated in MPEP 409.03(a):

“An application deposited in the U.S. Patent and Trademark Office pursuant to pre-AIA 37 CFR 1.47(a) must meet the following requirements: (A) All the available joint inventors must (1) make oath or declaration on their own behalf as required by pre-AIA 37 CFR 1.63 or 1.175 […] and (2) make oath or declaration on behalf of the nonsigning joint inventor as required by pre-AIA 37 CFR 1.64.”

It’s important to note that this section is not applicable to applications filed on or after September 16, 2012.