The question of inventorship is a legal question. The law requires all inventors who made an inventive contribution to the invention to be named in a patent application. Routine testing of an invention does not meet this criteria. Inventor(s) are the people with the “Ah ha!” moment in their mind.
Find out about Proof Of Concept.
Often, people want to add their friend, co-worker, supervisor, etc. as a “courtesy”. However, it is improper and actually illegal to do this under the Patent Law.
However, failing to name an inventor who made an inventive contribution can lead to ownership issues down the line. For example, someone who was not named as an inventor on a patent application can challenge ownership of the patent. It doesn’t matter if the inventor was left off purposefully or left off by mistake.
Naming an inventor is a legal determination. Inventorship can only be determined once you know what the claimed invention is.
Who Own Rights To The Invention?
Be careful if you are working with someone else on product development. You will want to make sure to have an agreement in place with that person that “in the event” they do come up with anything patentable. The agreement should specify that they are required to assign all patent rights to you or your company.
Typically independent contractors own the rights to anything they invent absent a prior written agreement obligating them to assign the rights. Even employees may own rights to an invention, except under particular circumstances. So it is best to have an employment agreement with all employees. The employment agreement should require that inventions be assigned to their employer.
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A Patent Attorney can help you determine who should be named an inventor and help keep it from becoming an ownership issue down the road. While the Patent Office allows corrections to naming inventors if a mistake was made, the Patent Office may not allow a correction where an inventor was intentionally left off of the patent application. Read more about Improper Naming Of Inventors at the US Patent Office Website.