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According to the law, only the inventor may apply for a patent, with certain exceptions. If a person who is not the inventor should apply for a patent, the patent, if granted, would be invalid. Further, the person who falsely states that he/she is the inventor in the Declaration or Oath which is submitted with the application, would also be subject to criminal penalties.
If the inventor is dead, the application may be made by his/her legal representative. If the inventor is insane, the application for patent may be made by a guardian. If an inventor refuses to apply for a patent or cannot be found, a joint inventor or a person having a propriety interest in the invention may apply on behalf of the missing inventor.
When two or more persons make an invention jointly, they may apply for a patent as joint inventors. It is important to note, however, that a person who makes a financial contribution is not a joint inventor and cannot be joined in the application as an inventor.
Often, an inventor will assign all or a portion of their legal interests in an invention to a third party, such as an employer, prior to filing the patent application. In this instance, the third party may have the patent application prepared, however, the Declaration or Oath would still have to be signed by the inventor. Typically, an Assignment document would be executed and submitted to the U.S. Patent & Trademark Office with the application. The Assignment document, would then allow the third party to prosecute the patent application through the U.S. Patent & Trademark Office.
If an innocent mistake is made regarding the inventor or inventors, it usually can be corrected.
In some instances, the name of a joint inventor may have to be deleted from the patent application. Usually this occurs when joint inventors have invented separate elements in certain claims and those claims, during prosecution of the patent application, have been deleted entirely or modified to delete the specific elements.
Officers and employees of the U.S. Patent & Trademark Office are prohibited by law from applying for a patent or acquiring, directly or indirectly, except by inheritance or bequest, any patent or any right or interest in any patent. |
