What Happens to a Patent When Its Owner Dies?

Legally reviewed by Thomas Lemler - founder of Lemler IP

A patent can be an extremely valuable asset, especially when it generates licensing revenue or protects an invention that is used by a successful business. Because of this, when a patent owner passes away, surviving family members, business partners, and other interested parties may have several questions regarding what will happen to the patent and who will have the right to control it going forward. Fortunately, a patent does not simply expire when its owner dies. Instead, it will generally become part of the owner’s estate and may be transferred to another person or entity. Please continue reading to learn more about what happens to a patent after its owner passes away and how a Washington, D.C. intellectual property lawyer may assist you.

Does a Patent Remain Valid After Its Owner Dies?

Yes. Under federal law, patents have the attributes of personal property, which means they can be owned, sold, assigned, licensed, or inherited. The patent owner’s death does not shorten the patent’s original term, nor does it cause the invention to immediately enter the public domain.

That being said, the patent will remain subject to the same requirements and limitations that applied during the owner’s lifetime. Some of the most important considerations are as follows:

• Expiration dates: The patent will remain enforceable only for the remainder of its established term, subject to any applicable adjustments or extensions.
• Maintenance fees: Required maintenance fees must continue to be paid for most utility patents. If these payments are missed, the patent may expire before the end of its ordinary term.
• Existing licenses: Any valid licensing agreements may remain in effect, depending on the terms of those contracts.
• Enforcement rights: The person or entity that properly inherits or acquires the patent may have the right to pursue parties that use the invention without authorization.
• Previous assignments: If the inventor transferred the patent to an employer, business, or another party before dying, the patent may not be included in the inventor’s estate.

Therefore, before anything else is done, it is essential to determine who actually owned the patent at the time of death.

How Is a Patent Transferred After the Owner’s Death?

A patent owner may use a will or trust to leave patent rights to a designated beneficiary. If there is no valid estate planning document that controls the transfer, the patent may pass according to the intestate succession laws of the jurisdiction handling the estate.

Transferring a patent can be more complicated than transferring many ordinary personal belongings. Before determining who should receive the patent, the executor or administrator may need to answer several questions, including the following:

• Was the deceased person the patent’s sole owner?
• Did anyone else have a partial ownership interest?
• Was the patent subject to an assignment or licensing agreement?
• Is the patent currently generating royalty income?
• Are there any pending infringement claims?
• Was the patent owned individually or through a business?

Answering these questions is critical. For example, if the deceased had a partial ownership interest, U.S. law defaults to treating patent co-owners as “tenants in common.” This means the deceased inventor’s share passes to their estate, which can severely complicate future infringement lawsuits if the new owners and the surviving inventors do not agree on how to proceed. Once all ownership questions are resolved and the rightful heir or beneficiary is determined, the transfer, along with the relevant court orders or probate documents, must be formally recorded with the USPTO Assignment Recordation Branch to officially update the title of the patent.

What Happens If the Inventor Dies While an Application Is Pending?

The death of an inventor does not necessarily end a pending patent application. In many cases, the inventor’s legal representative may continue the application process. Depending on the circumstances, this person may be an executor, estate administrator, assignee, or another party with the proper legal authority. Some of the steps that may need to be taken are as follows:

• Confirming ownership of the pending application
• Notifying the attorney handling the application
• Reviewing all filing and response deadlines
• Establishing the representative’s authority
• Preparing any required substitute statements
• Updating ownership records with the USPTO

Ultimately, it is always best to have a Washington, D.C. intellectual property lawyer in your corner who can review the patent, estate documents, assignments, licenses, and USPTO records, determine who has the right to control the patent, and help protect its value going forward.

If you have additional questions or would like to speak with an attorney about your case, please don’t hesitate to contact Lemler IP today for a complimentary initial consultation.