Rights of inventors and applicants for patents
When applying for a patent, it is necessary to know who the applicant and who the inventor are. The applicant is the holder of the patent right applied for and of the patent to be granted in it. However, in principle the inventor is entitled to the patent. This leaflet concerns the rights of inventors and applicants, and how these rights interrelate.
The applicant is the legal owner of the patent right applied for, i.e. of the patent application. An applicant can be both a natural person and a legal person. If the patent application leads to a patent being granted, the applicant is also the proprietor of the patent. It is also possible to apply for a patent in the name of a number of applicants, though this is not often preferable. Furthermore, the ownership both of a patent application and of a patent can be transferred.
The applicant is responsible for a patent (application), but also reaps the benefits of it. These include action against an infringing third party, licensing and selling. Patents and patent applications are shown on the balance sheet as intangible fixed assets.
It is essential that an applicant can prove the right to (apply for) a patent, or the grounds on which the patent entitlement rests. For more on this subject, see ‘Applicant-inventor relationship’.
The inventor is the author of the invention, or someone who at least made a technical contribution to it. Only a natural person can be an inventor. Someone who, for example, only made a financial contribution to an invention does not thereby become an inventor. Several inventors may be responsible for one invention. For example, a first inventor may have invented the general principle behind the invention, while a second may have invented specific parts or embodiments of it.
Failure to register an inventor, or later amendments of inventor details, especially deletion of an unwanted inventor who was later registered for a patent application, may lead to problems such as legal discussion of the right of ownership of the patent application or patent.
As stated, in principle the right to apply for a patent lies with the inventor(s). The applicant may acquire the right to apply for a patent from the inventor(s), by agreement. In practice, by such an agreement, the inventor assigns their right to patent the invention to the applicant. The applicant may also have applicant status by law. This may occur, for example, under certain conditions, if the inventor is employed by the applicant.
Inventors’ rights also differ according to country. In any case, in the Netherlands and in Europe, inventors always have the right of being mentioned as the inventor in patent publications after filing of the patent application. If an inventor does not wish to be mentioned, he/she should state this in writing. In the United States (USA) and elsewhere, an inventor has more extensive rights.
It is important for the applicant to ensure that the inventor is, and remains, accessible. At a later stage of a patent procedure, it may be necessary to refer to the inventor, for example to sign official documents. This is a requirement, at least in the USA. If, for example, based on a first Dutch patent application, corresponding patent rights are later applied for in the USA, it must explicitly be proved to the US Patent and Trademark Office that the applicant has obtained the right to apply from the inventor(s). Inventorship must also be confirmed by a statement. Such official documents require the inventor’s signature.
An agreement between inventor and applicant can also make provision for matters such as accessibility. That is one reason more for taking a critical look at inventorship and the role of the inventor(s) at an early stage and setting out the relevant matters in writing.
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