What should I do if an inventor is unavailable to sign an affidavit or declaration under 37 CFR 1.131(a)?

If an inventor is unavailable to sign an affidavit or declaration under 37 CFR 1.131(a), the procedure depends on the application filing date:

• For applications filed before September 16, 2012:
  • The remaining joint inventors can sign the affidavit or declaration.
  • A petition under 37 CFR 1.183 requesting waiver of the unavailable inventor’s signature must be submitted.
  • Proof of the inventor’s unavailability (similar to that required for a pre-AIA 37 CFR 1.47 petition) must be provided.
• For applications filed on or after September 16, 2012:
  • The party qualified under 37 CFR 1.42 or 1.46 can sign the affidavit or declaration.

The MPEP states, “For affidavits and declarations submitted in applications filed before September 16, 2012, where one or more of the named inventors of the subject matter of the rejected claim(s) (who had originally signed the oath or declaration for patent application under 37 CFR 1.63) is thereafter unavailable to sign an affidavit or declaration under 37 CFR 1.131(a), the affidavit or declaration under 37 CFR 1.131(a) may be signed by the remaining joint inventors provided a petition under 37 CFR 1.183 requesting waiver of the signature of the unavailable inventor is submitted with the affidavit or declaration under 37 CFR 1.131(a).” This provides a solution for cases where an inventor becomes unavailable after the initial application filing.

To learn more:

• unavailable inventor
• 37 CFR 1.131(a)
• 37 CFR 1.183
• petition
• joint inventors

To learn more:

• 37 CFR 1.131(a)
• 37 CFR 1.183