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11 May, 2021

Who can be an inventor?

The legal definition of the term ‘inventor’ is determined by national law, so can vary by jurisdiction. Under UK law, the inventor is the “actual devisor” of an invention described in a patent application. An inventor must be a natural person – this means that inventorship cannot currently be attributed to an artificial intelligence (AI) under UK law. Joint inventors may be named in cases where an invention is jointly devised.

How can I identify the inventors of an invention?

In practice, to qualify as an inventor, a person must contribute to the “inventive concept”. This may involve helping to solve a technical problem associated with the invention. Merely contributing to the claims does not necessitate that a person be an inventor, because the claims might include non-patentable features derived from the prior art, or details unrelated to the inventive concept. Equally, providing crucial starting materials or executing instructions alone is unlikely to mark a contribution significant enough to render a person an inventor.

Why is it important to identify the correct inventors?

Establishing inventorship correctly is important for many reasons. Firstly, the ‘inventor’ is afforded certain rights, such as the right to be mentioned in the patent application. Secondly, the question of inventorship is closely related to the question of ownership. For example, under UK law, the right to be granted a patent is primarily given to the inventor or joint inventors. Even in situations where this presumption is overridden, such as employee inventions, the inventor must still be identified to correctly determine entitlement to grant. Ownership is a key issue in patent law as it is the owner (or proprietor) of a patent who is able to exploit and control the use that is made of that patent. In particular, it is the owner who is entitled to assign or license a patent, as well as sue for infringement. Thirdly, some jurisdictions place restrictions on where a patent application should be first filed depending on, e.g., the nationality or domicile of the inventor. Therefore, it is important to establish inventorship before filing so as to avoid falling foul of such restrictions. Finally, and quite critically in certain jurisdictions such as the US, incorrectly identifying the true inventor/inventors can render a patent invalid, and hence unenforceable.

What happens if I incorrectly name an inventor or fail to name a correct an inventor?

It is often possible to remedy the incorrect naming of an inventor in a patent application or a granted patent, or to name an additional inventor. If this, or any other related issue becomes a concern for you, please contact your usual advisor who will be able to advise you further.

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