MPEP 409.02
Unavailable Joint Inventor – Application Filed on or after September 16, 2012

This is the Ninth Edition of the MPEP, Revision 08.2017, Last Revised in Januay 2018

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409.02    Unavailable Joint Inventor – Application Filed on or after September 16, 2012 [R-11.2013]

[Editor Note: See MPEP § 409.03 et seq. for information pertaining to the unavailability of an inventor in an application filed on or after September 16, 2012.]

37 C.F.R. 1.45 Application for patent by joint inventors.

  • (a) Joint inventors must apply for a patent jointly, and each must make an inventor's oath or declaration as required by § 1.63, except as provided for in § 1.64. If a joint inventor refuses to join in an application for patent or cannot be found or reached after diligent effort, the other joint inventor or inventors may make the application for patent on behalf of themselves and the omitted inventor. See § 1.64 concerning the execution of a substitute statement by the other joint inventor or inventors in lieu of an oath or declaration.

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Joint inventors must apply for a patent jointly, and each joint inventor must make the inventor’s oath or declaration required by 37 CFR 1.63, except as provided for in 37 CFR 1.64. See 35 U.S.C. 116(a) ("[w]hen an invention is made by two or more persons jointly, they shall apply for patent jointly and each make the required oath, except as otherwise provided in this title."). 37 CFR 1.45(a) provides that if a joint inventor refuses to join in an application for patent or cannot be found or reached after diligent effort, the other joint inventor(s) may make the application for patent on behalf of themselves and the omitted inventor. 37 CFR 1.45(a) also cross-references 37 CFR 1.64 concerning the execution of a substitute statement by the other joint inventor(s) in lieu of an oath or declaration. See MPEP § 604 for additional information pertaining to substitute statements