Deciding who should be named as the inventor on a patent application
The inventor, or inventors, for a patent application should be the person, or people, who devised, whether on their own or jointly, the invention set out in the patent application. It is therefore necessary to assess who actually devised the invention set out in the patent application. It is important not to add people as a courtesy, nor to omit anyone who actually devised the invention. This contrasts with the normal procedure for naming authors on an academic paper, where it would be common to name people who carried out the work discussed in the paper, without actually devising the underlying idea, or who supervised the research, without actually devising the underlying idea.
In the UK at least, what is meant by "the invention(s)" is the idea or ideas which are set out as being inventive in the patent application. There may be multiple potentially inventive concepts. If parts of a patent application are removed, or when filing divisional patent applications, it is possible that who should be named as the inventor(s) will change.
Note that the inventor(s) (who are people) and the applicant(s) (companies or people) may well be different, as we will explain below.
Why is it important to name inventors correctly?
In some countries, notably the United States, deliberate omission of an inventor or deliberate inclusion of a person who is not a true inventor can be used to challenge the validity of any resulting patent and so it is important to make a careful assessment. In the UK, omission of an inventor would be more likely simply to give grounds for a potential inventorship dispute which could have more serious implications in some circumstances.
Inventorship is also important because it affects the ownership of patents and patent applications. Roughly speaking, absent any agreements or employment arrangements, the inventor, or inventors, would usually have the right to be granted a patent, whether on their own (if they are the only inventor) or jointly (if there are multiple inventors). If any inventor is an employee then, depending on the details of the employment relationship, their right to be granted a patent (whether singly or jointly with others) may well be transferred to their employer although they should still be named as inventor. In practice, there may be other relevant contracts, subsequent assignments, court orders etc. However, determining the ownership of a patent or patent application starts by considering the inventor(s).
When do the inventors need to be named?
This varies between territories, but for UK and European patent applications it is not required to name the inventor(s) until 16 months after the priority date (or filing date, if there is no priority claim). Still, it is advisable to determine inventorship before a patent application is filed to minimise the risk of unwelcome legal complications at a later stage. This is partly because if there is an issue concerning whether the applicant is entitled to be granted a patent arising from the invention of a specific inventor it is best to deal with that issue as soon as possible. In addition, some countries have security requirements that dictate where a first patent application must be filed due to the nationality or country of residence of an inventor (or the place where the invention is made, or the nationality or country of residence of an applicant).