Chapter 400
Chapter 400 covers who may represent applicants before the USPTO, who qualifies as the applicant, power of attorney rules, assignee rights, and practitioner certifications. Under AIA, the assignee can be the applicant — which changes who controls prosecution.
Core Concepts
Who Is the Applicant Under AIA, applicant may be: inventor(s), legal representative of deceased/incapacitated inventor (37 CFR 1.43), joint inventors acting for omitted inventor (37 CFR 1.45), or assignee/obligated assignee (37 CFR 1.46). If applied under 1.46, assignee — NOT inventor — is the applicant.
Deceased or Incapacitated Inventor — 37 CFR 1.43 Legal representative (executor, administrator, guardian) may apply and becomes the applicant.
Joint Inventors — Omitted Inventor — 37 CFR 1.45 If one inventor refuses to sign, cannot be found, or refuses to cooperate — remaining inventors may apply. Omitted inventor still named but need not sign.
Assignee as Applicant — 37 CFR 1.46 (Extremely Important) Assignee may file as applicant if invention assigned, obligated to assign, or sufficient proprietary interest shown. Consequences: inventor cannot appoint attorney, inventor cannot revoke POA, assignee controls prosecution.
Power of Attorney — MPEP 402 POA must be signed by the applicant. When multiple applicants, ALL applicants must sign — one applicant cannot appoint POA alone without petition and fee showing sufficient cause. Non-applicant assignee CANNOT appoint attorney.
Assignee Rights — 37 CFR 3.71/3.72/3.73 3.71: Defines when assignee becomes owner of record — requires recorded assignment. 3.72: Assignee may prosecute only after ownership established. 3.73: Assignee must establish ownership before acting — merely owning is not enough. Requires 3.73(c) statement. Distinction: Assignee-applicant under 1.46 may appoint attorney directly. Mere assignee owner must comply with 3.71 and 3.73 first.
Continuing Applications and POA POA from parent carries over to continuation UNLESS continuing application names an inventor not named in prior application.
Practitioner Not of Record — MPEP 405 May file papers under 37 CFR 1.34. Filing paper = authorization for that filing only. Filing paper does NOT authorize interviews — must submit interview request form separately.
Withdrawal of Attorney — MPEP 409 Requires USPTO approval. USPTO will NOT decide withdrawal requests filed after reply period expired. Withdrawing attorney may only redirect correspondence to: applicant, proper assignee, or recognized address — cannot redirect to another law firm.
Certifications and Sanctions — 37 CFR 11.18(b) Every paper submitted certifies: not filed for improper purpose, legal contentions warranted, factual allegations supported, statements made after reasonable inquiry. Violations may result in sanctions.
PTO Forms Certification language on USPTO forms CANNOT be modified or altered.
Key Rules
EXAM TIP
Two most tested concepts: (1) Under 37 CFR 1.46 the assignee BECOMES the applicant — inventor loses the right to appoint or revoke POA. (2) POA must be signed by ALL applicants — if there are joint inventors/applicants, one cannot appoint without all signing, unless a petition with fee and sufficient cause is filed.
Common Traps
Search Terms
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