According to patent law, only the inventor may apply for a patent, with certain exceptions. If a person who is not the inventor should apply for a patent, the patent, if it were obtained, would be invalid. The person applying in such a case who falsely states that he/she is the inventor would also be subject to criminal penalties.
If The Inventor Is Dead, Insane, or Refuses to Patent. If the inventor is dead, the application may be made by legal representatives, that is, the administrator or executor of the estate. If the inventor is insane, the application for patent may be made by a guardian. If an inventor refuses to apply for a patent or cannot be found, a joint inventor or a person having a proprietary interest in the invention may apply on behalf of the non-signing inventor.
Co-InventorsIf two or more persons make an invention jointly, they apply for a patent as joint inventors. A person who makes a financial contribution is not a joint inventor and cannot be joined in the application as an inventor. It is possible to correct an innocent mistake in erroneously omitting an inventor or in erroneously naming a person as an inventor.
The inventor or the company employing the inventor. When someone makes an invention, and does so as an employee of a company, usually the company owns the right to apply for a patent. The exception once again is the United States, where only natural persons may apply for a patent. In the USA, the employee will typically have a clause in his employment contract stating that he assigns all his patent rights to the company. The filing is then done on behalf of the employee, but the rights immediately go to the company.
Most countries do require that the employee's activities are in some way related to the invention. If the janitor invents a new medicine, his company will not automatically own the patent rights to that medicine. However, if a researcher in a medical company invents the same medicine, his company does.
The company may be required to pay the inventor compensation, unless his salary is deemed adequate for an inventor. In Germany, if a company decides it does not want to apply for a patent on an invention one of its employees invented, the employee has the right to apply for the patent himself.
Often, an inventor will assign all or a portion of their legal interests in an invention to a third party, such as an employer, prior to filing the patent application. In this instance, the third party may have the patent application prepared; however, the Declaration or Oath would still have to be signed by the inventor. Typically, an Assignment document would be executed and submitted to the U.S. Patent & Trademark Office with the application. The Assignment document, would then allow the third party to prosecute the patent application through the U.S. Patent & Trademark Office.
If an innocent mistake is made regarding the inventor or inventors, it usually can be corrected. In some instances, the name of a joint inventor may have to be deleted from the patent application. Usually this occurs when joint inventors have invented separate elements in certain claims and those claims, during prosecution of the patent application, have been deleted entirely or modified to delete the specific elements.
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