Unfortunately, the world of “legalese” tends to close out understanding from people who do not work in the legal profession.
Here at Start My Business, we operate on the philosophy that everyone should be able to understand and take care of their business’s legal issues without the need to call in an expert lawyer.
In this article, we will explain the often misunderstood concepts of:
Firstly, what is a patent?
The Oxford Dictionary defines a patent as:
“A government authority or licence conferring a right or title for a set period, especially the sole right to exclude others from making, using, or selling an invention.”
There’s an important word in that definition above which is key to understanding these concepts.
That word is invention.
A patent is, basically, a license or authoritative document from a government which gives an entity the sole right to make, use or sell an invention.
When a legal entity files for a patent and gets it approved, that gives that entity (a person or corporation) the right to take legal action against any other person or corporation that is trying to make, use or sell that specific invention.
Who invented the item or process being patented?
This is a matter to be determined before — and sometimes during — the patent application.
One thing is certain: The inventor of a product or process is always a natural person. The inventor is never a corporation or a company.
Thomas Edison was an inventor. Nikola Tesla was an inventor. Benjamin Franklin was an inventor.
All these inventors were people, not organisations.
A good example of an inventor who did not immediately gain the right to commercialise and protect his invention is Shane Chen, the inventor of the hoverboard.
Authorship applies specifically to artistic works, more specifically to written works — journals, essays, books, etc.
Authorship is a subject dealt with under copyright law.
Inventorship is a subject dealt with under patent law.
Here are some important concepts to understand:
Establishing who the inventors of a process or product are can often be a fairly subjective and complicated process. Establishing who the author of a publication is, is not. Either someone wrote something that was published, or they didn’t.
The biggest problem with not naming the correct inventor in a patent is that it can make the patent unenforceable if litigation ever ensues.
It is quite common that parties attempt to invalidate a patent by challenging the validity of its stated inventorship. If a party does manage to prove that the inventor (or inventors) named in a patent are not the true inventors, the patent can be rendered null and, therefore, unenforceable.
It’s important to understand the concept of “Work for Hire”.
Often, an author or inventor transfers their rights to their invention or authored works because they have specifically signed a contract doing so.
An author who creates work “for hire” automatically transfers the copyright for that work to the entity which has hired them.
In the case of an inventor, nothing can ever change the inventorship of something, not even a contractual clause, but contracts almost always transfer ownership to the hiring entity for anything invented.
Again, it’s important to appreciate the difference between copyright law and patent law. “Ownership” is tightly coupled with copyright. In patent law, the creator and owner are separated.
The copyright owner is also the “owner” of the work. An investor can transfer ownership but will always remain the inventor.
We’ve touched on this already above, but let’s summarise.
An inventor has no right to monetise an invention which they do not own.
Ownership of an invention can be transferred by contractual clauses, or in a patent.
The owner of a patent can litigate in an attempt to prevent anyone else from using or manufacturing an invented product, including the inventor themself.
Ownership is, essentially, a proprietary right.
No, definitely not. And that’s why it’s so important to specify the inventor in any patent application.
Only the inventor or the person claiming proprietary ownership over the invention can file for a patent.
This is why Work for Hire is such an important concept. If the inventor has signed away their right to ownership of an invention, then the rightful owner can file for a patent on that invention.
Being an inventor is something that can never be taken away from a person, and it looks great in someone’s CV!
But it doesn’t automatically confer ownership.
We hope the above clarifies the patent application process, as well as the differences between ownership, authorship and inventorship.
Applying for a patent is crucial if you wish to protect your or your employees’ inventions.
It’s important to understand the patent application process as well as the basic terminology of patent law to ensure a smooth and successful application in the end.
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