Stolen Valor: How Sleazy Patent Attorneys Abuse Inventorship
For an innovator, being named as an inventor on a patent is the crowning achievement of a career.
Being named an inventor says that the person has contributed something to humanity that has never existed, and that accomplishment is memorialized forever in the patent database.
Being an inventor is huge.
But what happens when the very professionals hired to protect that honor—patent attorneys—decide to claim a piece of it for themselves? These attorneys engage in what can only be described as “stolen valor,” inserting their own names into patents they had no rightful part in inventing – even if they did add to the invention.
The Sacred Role of the Inventor’s Name
For an inventor, having their name on a patent is a life-changing acknowledgment. It’s not just a legal formality; it’s a testament to their creativity and effort.
How important is it?
Being an inventor will be mentioned at their funeral.
Being named as an inventor can define a career, bring recognition in professional circles, and even shape the legacy they leave behind.
In other words, it’s a big deal—and it’s something that should never be claimed by anyone who hasn’t earned it.
For Inventors, a Patent is a Culmination of Years of Work
For an inventor, a patent is sacred. It is their baby. It is something they may have been working on for years.
I was an inventor several times as an engineer, and it was the single highest honor that an engineer could have, short of winning the Nobel Prize.
As a patent attorney, I have the privilege to get to see technologies that has been in the works for years. The invention may have been the result of thousands of experiments, redesigns, failures, setbacks, and breakthroughs.
The reward of all that hard work: getting a patent that cements their invention in history.
When you look at a patent, you see just the result of that hard work, but you often do not see the sweat, hard work, and trail and error that got to that point.
A patent truly is the reward for those countless sleepless nights and frustrating failures.
Engineers See Patents as the Greatest Awards
When I was doing Microsoft patents, each inventor would be awarded 2 inch cubes every time a patent was submitted. Some would have stacks of cubes in their window or on their desks. It was the biggest badge of honor.
Everybody in the engineering groups would fight to get listed as inventors. And there was a bunch of sleazy behavior to get listed as “inventor.”
I was the sole inventor on a handful of patents just before I left Hewlett Packard/Agilent back in the 1990’s. After I left, another engineer had his name added to the invention disclosure, and even went to the trouble to have the patent attorney list him as the first-named inventor. Feel free to search for my name with patents that were assigned to Agilent and you can see who it is.
Sleazy Patent Attorney’s Interpretation of the Law
The definition of a ‘co-inventor’ is someone who contributes at least one limitation of one claim of the patent. The sleazy patent attorneys use this definition to justify being listed as an inventor.
These sad people leech the inventor’s hard work, casually mention one obvious limitation on some dependent claim, and vehemently argue that they are now “inventor.”
My observation is that these are the patent attorneys who never worked in industry. They never toiled on some design for 18 months, got a prototype working, fixed all the bugs, redesigned it again, and finally had something workable – then had the honor of achieving inventorship.
They never went through the painful political minefield of all the bosses arguing about patents – not because they were good for the company – but because they wanted to reward their “star” people and avoid recognizing people they did not like.
These sleazy patent attorneys are jealous of their inventors and purely want the recognition they did not deserve.
Every one of these sleazy patent attorneys wear their “inventorship” as if it was some badge of honor. It is supposed to show that the patent attorney contributes much more value because the patent attorney invented their client’s inventions.
To be clear: claiming inventorship by a patent attorney completely undermines the entire inventorship concept, destroys the patent’s value, creates a huge conflict of interest, and is morally and ethically wrong.
If your patent attorney lists themselves as an “inventor,” immediately contact the USPTO’s Office of Enrollment and Discipline and report them for unethical behavior.
The Patent Attorney’s Proper Role
In my mind, a patent attorney should not be just a scrivener, writing down whatever the inventor says.
A patent attorney’s job is straightforward: they guide the inventor through the patent process. They are a facilitator.
Part of the process is to help inventors articulate their invention.
A talented patent attorney will pull the invention out of the inventor, help them give it shape, and find the boundaries of their discovery.
This is done by asking questions and guiding the inventor to explain different parts of the invention.
A skilled patent attorney will stretch the invention to find where it breaks, guide the inventor through design-around alternatives, help the inventor target competitors, and make the invention much more than what the inventor may have even considered.
This process makes the patent much more robust, but it often shows the inventor where the concept can be expanded, or where it might be limited in ways they have not seen. The back-and-forth with the inventor is a process of refining and sharpening the invention.
This is called “doing your job.” It is not “inventing.”
The moment a patent attorney claims that they are an inventor, they create a host of problems.
The patent attorney’s real role is to represent their clients – in other words, to make their clients look good.
By stretching and expanding their invention and helping them see their own invention more broadly, they are making their clients look better. Ethically and morally, they should always make their clients look good, not steal their inventions by naming themselves as an “inventor” for doing their job.
The Ethical Conflict of Interest
One of the most glaring issues is the conflict of interest. A patent attorney is supposed to act solely in the client’s best interest. This is rule 37 CFR 11.107, and specifically that the practitioner cannot represent a client if the “practitioner’s own personal interests” are in conflict.
In re Lane, Proceeding No. D2011-64 (USPTO Feb. 8, 2012) – a patent agent represented a surgeon in obtaining a patent for a medical device. The
When they become a named inventor, they now have a personal stake in the patent’s outcome. If the claims need to be amended, they may resist changes that would remove their own contribution. Their judgment is now clouded by self-interest, and the mere thought that the practitioner might tend to keep their name on the patent as an inventor makes them ineligible to perform further work on that patent application.
In other words, if a patent attorney names themselves as an “inventor,” they must recuse themselves from any further work on that client’s patents. All of a sudden, the client must find not just a new patent attorney, but a new patent law firm, as both the attorney and their firm are disqualified from working on that patent application. See 37 CFR 11.107 and 37 CFR 11.108.
Here’s what the Court of Appeals for the Federal Circuit said in Solomon v. Kimberly-Clark, 216F.3rd 1372 (Fed. Cir. 2000):
An attorney’s professional responsibility is to assist his or her client in defining her invention to obtain, if possible, a valid patent with maximum coverage. An attorney performing that role should not be a competitor of the client, asserting inventorship as a result of representing his client. Cf. Patent and Trademark Office, U.S. Dep’t of Commerce, Manual of Patent Examining Procedure app. R § 10.64 (7th ed.1998) (“Avoiding acquisition of interest in litigation or proceeding before the [Patent and Trademark] Office”).
Theft of Trade Secrets and Theft of Patent Ownership
It’s not just about conflicts of interest. When a patent attorney claims inventorship, they often do so by using the client’s own confidential information. The client shared their trade secrets in good faith, expecting the attorney to protect them.
Instead, the attorney improperly uses their client’s own trade secrets to “create” an “invention” that the attorney now owns, and now the patent attorney misappropriated (read: “stole”) the trade secrets.
This is theft, pure and simple.
The patent attorney was given the trade secrets to protect, and by claiming to be an “inventor,” they have ownership rights that they were never granted, never negotiated, and never wanted.
Not only is it theft of ownership, it is a betrayal of the fundamental tenants of the attorney/client relationship and a misuse of the client’s proprietary information.
The Ownership/Assignment Quagmire
To make matters even more complicated, there’s the question of ownership. When a patent attorney names themselves as an inventor, they have ownership rights in the patent.
Every attorney/client relationship implies that the client’s property is always the client’s property. By naming yourself as an inventor is a violation of that agreement, as the patent attorney asserts ownership over the client’s most valuable trade secret – the one they are trying to patent.
The attorney has a fiduciary responsibility to their law firm, not the client. This is especially true if the patent attorney is a principal of the law firm. There is an implied duty to assign their rights to the law firm.
Now the law firm must transfer their rights of their self-proclaimed “invention,” not just the patent attorney. If the law firm does not assign their rights to the “invention,” the patent has a cloud of title and is dramatically de-valued.
The client might have to negotiate to get full ownership, which means they could end up paying for something that should have been theirs outright. It’s an ethical and legal minefield that the client never agreed to enter.
Stolen Valor: A Betrayal of the Inventor’s Honor
We are talking about stolen valor.
These sleazy attorneys are taking an honor that belongs to the inventor and using it to boost their own reputation.
They’re turning a moment of triumph for the inventor into a shared prize, diluting the recognition that the inventor worked so hard to earn.
It’s not just unethical; it’s a fundamental betrayal of the inventor’s trust and the integrity of the patent system.
What is the practical reality of this?
Having multiple inventors always raises the specter of improper inventorship.
At the time that the patent attorney steals the invention by naming themselves an “inventor,” the real inventors never say anything, but there is something sleazy and improper about it.
When litigation comes up, all I need is one of those inventors to be disgruntled.
If I can get one of the real inventors to start talking and saying bad things about how their patent attorney swooped in during one short meeting and claimed inventorship after they have worked for 5 years on this project, I can invalidate the patent.
Even if the patent attorney was “legally” correct that they were an actual, legal inventor, their presence hurts, and hurts quite a bit.
That lingering resentment and eventual hatred of the patent attorney’s theft is not only of their trade secrets and their invention, but the honor and recognition that the inventor so rightly deserved.
That resentment will come out in litigation and devastate the value of the patent.
It really does not matter if the patent attorney can “justify” their theft of trade secrets and theft of patent ownership because they were “so smart” as to suggest an “improvement” to an invention. Maybe there is legal support for their theft.
However, the resentment of the real and true inventors who actually worked on the project, actually struggled with the solution, and actually contributed is undeniable.
Once I can get that inventor to badmouth the sleazy patent attorney who added themselves to the inventorship, the patent will never survive litigation.
The patent is dead in the water because – solely – of the sleazy, self-serving, ego-centric actions of their own patent attorney.
There is no fine parsing of the legal definitions that justify stealing an invention by adding your own name to an invention, when the practical reality of the stolen valor is far more devastating.
Conclusion: Calling It What It Is
In summary, when a patent attorney claims inventorship, they are stealing the honor that rightfully belongs to the inventor.
They create conflicts of interest, misuse trade secrets, and complicating ownership in ways that can only be described as sleazy.
This is stolen valor, plain and simple, and it’s time we call it out for what it is.