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When it comes to securing a patent, who can actually apply?

When an inventor devises a new product or technology for which they would like to secure "the right to exclude others from making, using, offering for sale, or selling” here in the United States, the conversation invariably shifts to the possibility of securing a patent.

From there, an inventor will invariably have a host of questions: Can the creation be patented? What protection is provided by a patent? What is the role of the U.S. Patent and Trademark Office? And, of course, how is a patent secured?

While these are all extremely important questions, one important inquiry that is sometimes overlooked is who can actually apply for a patent.

In general, the law dictates that either the inventor, or the person/entity to whom the inventor has either already assigned or is legally obligated to assign the invention can file for a patent.

What if the inventor is deceased?

In the event an inventor has passed away, the administrator or executor of his or her estate may file the patent application on their behalf.

What if the inventor is incapacitated, can't be located or otherwise refuses to apply?

Similarly, if the inventor is incapacitated, the patent application may be filed by a legal representative, such as a guardian. If the inventor cannot be located or refuses to apply, the patent application may be filed on his or her behalf by a joint inventor.

What about joint inventors in general?

As implied by the name, if two or more people combine efforts to create an invention jointly, they will file their patent application as joint inventors.

It's important to understand, however, that those individuals who have only made a financial contribution to the efforts aren't considered joint inventors and cannot be included in the patent application.

If a mistake is made concerning the listing of inventors, can it be rectified?

If an innocent mistake is made in accidentally including or omitting an inventor in the patent application, it can be corrected.

It's important for anyone who has questions about the patent process to consider speaking with a skilled legal professional who can provide answers and pursue solutions.

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