There are many patents that have many inventors. It is not uncommon to see 4, 5, 6, or even more inventors listed on a patent. In fact, there are over 200 patents with at least 25 inventors – some have 130+ inventors!
This is a huge problem.
I understand the desire to ‘reward’ team members by giving them the honor of a lifetime: inventorship on a patent. But there are problems with including someone who is not an inventor.
Being an inventor means that in the history of mankind, nobody has ever thought up this idea. Think about it: an inventor came up with an original idea that billions upon billions of people have never before conceived. This is huge.
Being an inventor is something that will be mentioned at your funeral. It is truly an accomplishment of a lifetime.
Being an inventor is very important from a legal standpoint: if the inventors are listed incorrectly, your patent can be invalidated, especially if there is fraud or deceptive intent.
Why are there multiple inventors on a patent?
Joint inventors are people who have contributed to a patent, and it does not matter how much they contributed. Some inventors may have outlined the ‘big idea’ and drawn up the invention in broad strokes, while other inventors may have contributed a little nuanced element.
In many companies, bonuses are awarded to inventors. This incentivizes inventors to do their thing, but it also incentivizes very bad behavior – and loads of resentment.
Managers see inventions as candy they hand out to employees.
In many companies, patents are (rightly) paid for as a corporate expense and not out of a project team’s budget. This is usually the right thing to do, since the patents are 20 year, strategic assets and will survive a project team by many years. But it has an unexpected effect on the legitimacy of the inventions.
It is very easy for managers to see patents as a ‘free’ bonus pool that they get to dole out to their team.
Consequently, managers can lean towards giving out as many ‘patents’ as possible so that everybody on their team gets a bonus.
Some cultures require putting your boss and your boss’s boss on the patent as an inventor.
Many corporate (and societal) cultures require putting the boss’s name on a patent as an inventor. The theory is that the boss is ultimately responsible for the business, so they should have the honor.
I have seen unscrupulous patent attorneys who always put the company’s founder as an inventor, even when the founder is nowhere to be seen in an invention disclosure meeting. Why? They do it because the founder is the one who signs the checks, and making the founder happy means they can (over) charge for their services.
There are several problems with having lots of inventors.
Your patent can be invalidated for having the wrong people listed as inventors. That is the legal reason why inventorship is a problem. But the real problem is much more powerful and nuanced.
The real inventor is often resentful of others taking credit for ‘their’ invention.
An inventor may work on a problem for years. They have a glimmer of an idea, then might struggle with it over and over until it gels into a cohesive form. Invention, when done right, takes a lot of work, especially when the invention has commercial promise. This is why the light bulb is the best – and worst – symbol of invention.
At its essence, asking to be listed as an inventor when you did not do the heavy lifting is theft. Think about the person who blurts out a suggestion in a meeting when they first hear of a project. Is that invention? No.
For that person to ask to be an inventor is theft. It is stealing the rightful honor from someone who worked for it. It dilutes the inventor’s contribution minimizes their hard work by sharing the honor with someone who did very little to deserve it.
Resentment creates long term problems – especially in litigation.
For inventors who put in the hard work, having to share inventorship with colleagues who only spouted off a suggestion in a meeting is beyond frustrating.
When I was an engineer at HP, there were people constantly trying to come up with ‘ideas’ that could be patented – purely because there was a $100 gift certificate in it. During meetings, they would constantly try to be the first to make a suggestion, then want to be given credit when (someone else) wrote up an invention disclosure statement.
For the person who did the heavy lifting of working through the idea, these kind of hangers-on were awful. Someone who did all the work would have their contribution diluted by a few people who did a ‘drive-by’ invention by throwing out ideas.
When a patent is litigated and there are several inventors, an attorney will call each and every inventor. If one of the inventors still feels resentful (either about the invention or how the company treated them badly for some reason), the inventor will start saying something bad about the other inventors. If the attorney is skillful, the inventor will make statements about how they were tricked or how someone was added as an inventor through fraud or deceit. This will kill the patent.
Best practices: make every inventor initial which limitations of each claim that they invented, and which were invented by someone else.
Handling inventorship issues is a problem that most patent attorneys avoid. Any time you question inventorship, the ‘inventors’ can get angry that their ‘integrity’ is called into question.
The attorney knows – and the inventors know – that there is a bonus hinging on the invention. For those that think they are above money, they are in it for the prestige, credibility, and resume-puffing qualities of being an inventor.
As outside counsel patent attorney, I generally do not question inventorship, mostly because I don’t want inventors to be upset. But there have been a couple times where it seems that far more people have said they were inventors than is normal. When I have encountered gross abuse of inventorship, inside counsel asked that I have each inventor identify who was the inventor of each limitation of the claims.
This exercise has a couple purposes. First, it puts the inventors on notice that they must justify being listed as an inventor. The second purpose is to help the patent attorney know which inventors to leave off if there are amendments made to the claims before the patent issues.
Best practice: it is always better to have fewer inventors than more.
When I worked for Hewlett Packard, their solution was to pay a bonus to each inventor – up to three inventors. For four or more inventors, the maximum pot would be split amongst everybody. The magic result: they rarely had four or more inventors.
Keep in mind that being an inventor is an emotionally-charged thing for many people.
It can be hard to have the conversation with someone who did not contribute but they think they did. However, avoiding that conversation can damage your IP – and damage the enthusiasm of the real inventor.