请教在美国要求优先权的问题

谢谢远航的回复 学习了

谢谢楼上各位！
题述的内容是我们实际在处理的一个案子，因为有些困惑，所以提出来向大家请教。
碰到题述的问题后，我看了一本日本人写的美国专利实务的书（国内好像大家都在忙着赚钱，没人写这方面的书），上面说在美国要求优先权与被要求优先权的外国申请的申请人是谁没有关系。后来又请教了一个具有美国专利代理人资格的同学。现将他的回复摘抄如下，供大家参考：
There is no such a thing called \"transfer of priority\". The priority of a particular invention is inherited and is not affected by the name of the applicant in a successive application as far as the applicant in a successive application is legitimate. In order to be qualified to claim foreign priority, at least one of the inventor\'s names must be in common with the corresponding foreign patent. An assignee can file a patent application only if the inventor is not available.

JiePang wrote:
谢谢楼上各位！
题述的内容是我们实际在处理的一个案子，因为有些困惑，所以提出来向大家请教。
碰到题述的问题后，我看了一本日本人写的美国专利实务的书（国内好像大家都在忙着赚钱，没人写这方面的书），上面说在美国要求优先权与被要求优先权的外国申请的申请人是谁没有关系。后来又请教了一个具有美国专利代理人资格的同学。现将他的回复摘抄如下，供大家参考：
There is no such a thing called \"transfer of priority\". The priority of a particular invention is inherited and is not affected by the name of the applicant in a successive application as far as the applicant in a successive application is legitimate. In order to be qualified to claim foreign priority, at least one of the inventor\'s names must be in common with the corresponding foreign patent. An assignee can file a patent application only if the inventor is not available.

其中的“An assignee can file a patent application only if the inventor is not available. ”不是与上面各位所说的“美国专利的申请人必须是发明人”有一定的冲突吗？！

hjg111 wrote:
其中的“An assignee can file a patent application only if the inventor is not available. ”不是与上面各位所说的“美国专利的申请人必须是发明人”有一定的冲突吗？！

在美国的专利法实施细则中，发明人“not available” 的情况都是作为特例对待而且有明确规定的申请手续的。见下面引文：

37 CFR

§ 1.47 Filing when an inventor refuses to sign or cannot be reached.

(a) If a joint inventor refuses to join in an application for patent or cannot be found or reached after diligent effort, the application may be made by the other inventor on behalf of himself or herself and the nonsigning inventor. The oath or declaration in such an application must be accompanied by a petition including proof of the pertinent facts, the fee set forth in § 1.17(g), and the last known address of the nonsigning inventor. The nonsigning inventor may subsequently join in the application by filing an oath or declaration complying with § 1.63.

(b) Whenever all of the inventors refuse to execute an application for patent, or cannot be found or reached after diligent effort, a person to whom an inventor has assigned or agreed in writing to assign the invention, or who otherwise shows sufficient proprietary interest in the matter justifying such action, may make application for patent on behalf of and as agent for all the inventors. The oath or declaration in such an application must be accompanied by a petition including proof of the pertinent facts, a showing that such action is necessary to preserve the rights of the parties or to prevent irreparable damage, the fee set forth in § 1.17(g), and the last known address of all of the inventors. An inventor may subsequently join in the application by filing an oath or declaration complying with § 1.63.

(c) The Office will send notice of the filing of the application to all inventors who have not joined in the application at the address(es) provided in the petition under this section, and publish notice of the filing of the application in the Official Gazette. The Office may dispense with this notice provision in a continuation or divisional application, if notice regarding the filing of the prior application was given to the nonsigning inventor(s).

§ 1.42 When the inventor is dead.

In case of the death of the inventor, the legal representative (executor, administrator, etc.) of the deceased inventor may make the necessary oath or declaration, and apply for and obtain the patent. Where the inventor dies during the time intervening between the filing of the application and the granting of a patent thereon, the letters patent may be issued to the legal representative upon proper intervention.