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Determining Inventorship

Determination of inventorship can be difficult, but it is important because a patent must list the name of the actual inventor or inventors in order to be enforceable. Inventorship is a legal determination and is different than authorship.

Inventors may be improperly named on patent applications due to practical or political reasons. Some researchers incorrectly believe that merely participating in a research project is sufficient to qualify them as an inventor, or because they performed work to make the invention, but this is not legally correct. Persons are not inventors if they merely oversee the research project or because they participated on the design team or if they merely built another person’s solution.

Inventorship Requirements

To make an invention, the inventor must conceive a solution. Conception is the formation in the mind of a definite and permanent idea of the complete and operative invention, as it is to be applied in practice. Conception is complete when the inventor can describe in sufficient detail how to reduce the invention to practice without using more than routine skill or excessive experimentation.

When one person conceives the solution to a problem, that person is the sole inventor of the subject matter. It does not matter if other persons used routine workmanship in reducing the invention to practice.

If several persons contribute to an idea, determining who in fact contributed to the conception that led to the solution requires analysis of the particular facts of the situation. Typically this is legal determination should be made by an attorney. The claims of the patent application must be evaluated individually based on each person’s contributions. Only when a person makes a novel and unobvious contribution to the claims is that person considered to be an inventor.

Mere substitution of known elements for their known properties is usually not inventive. A person who merely follows the direction of the person who conceived a solution to physically reduce an invention to practice is not an inventor.

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