In the US and EP, if an unnecessary inventor who has not contributed to the invention at all is listed as one of the inventors, can it be invalidated, challenged, or restricted exercise?

In this case, all but the unnecessary inventors are true inventors.

Also, let me know if I can prove that the unnecessary inventor was deliberately listed, will the answer change?

  • Just so you know, if a person contributes even one bit of the invention, they are a co-inventor so long as that bit ends up in at least one claim. – Eric S Dec 4 '19 at 15:03
  • It also would help if we know some particulars. Such as who added the unnecessary person as an inventor and who is the assignee? – Eric S Dec 4 '19 at 15:04
  • Sorry for my late response. – Jeen Dec 10 '19 at 1:49
  • The company and its lawyers determine inventorship. They sometimes lean toward over inclusiveness. In any case it is unlikely to impact the value of the patent and doesn’t dilute the prestige of the other inventors. – Eric S Dec 10 '19 at 3:41

Not in Europe. Inventors have the right to be mentioned in the applications and patents, but it does not get any further than that. In fact it is possible to correct a deficient designation of inventors (some provisions apply), and I would say that said correction is possible even after the patent has been granted but I am not entirely sure. Something else is that the applicant/patentee is not entitled to the grant of a European patent, that may affect the validity of the patent.

  • Thank you, and I apologize my late response. In EP, I understand that if the assignee has all the rights to grant of European patent, even if an inventor displays an unnecessary inventor, it is unlikely to be a problem. – Jeen Dec 10 '19 at 3:06

It is not clear what you mean by an "unnecessary inventor".

Inventorship is important in the U.S. Anyone who makes a conceptual contribution that ends up in a claim is a proper inventor. It is not always easy to decide who is an inventor. One of the reasons inventorship is important is that, absent assignments, each inventor has an undivided, separate right to the invention with no need to coordinate or split money with the others.

It is also important becasue the validity of the patent can be attacked for incorrect inventorship. Until the AIA law went into effect, patents could be invalidated for incorrect inventorship because to correct inventorship required sworn statements under penalty of perjury from various people that the error in naming inventors was made "without deceptive intent".

Under the AIA, that requirement is gone so the list of inventors can be fixed, even in the middle of an infringement lawsuit without worrying about perjury.

  • This is slightly unclear. Are you saying that the patent can be invalidated under AIA due to incorrect inventorship or not? – Eric S Dec 5 '19 at 13:14
  • Under the AIA inventorship problems can be fixed so invalidation due to those problems are no longer an issue. – George White Dec 5 '19 at 15:59
  • Maybe I wasn't clear - deceptive intent has been removed from the law as of the AIA. It is not longer an issue at all. – George White Dec 10 '19 at 3:11

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