The Changing Nature Inventing: Collaborative Inventing

Although inventing can still be a solo endeavor, patenting data indicates that paradigm no longer predominates. Over the past four decades, the number of inventors per patent has steadily crept upward. The first chart below shows the average number of inventors per patent moving from 1.6 for patents issued in the 1970’s to 2.5 for patents issued since 2000.*

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As the chart below shows, this rising average is being driven by a dramatic increase in the proportion of “highly collaborative” inventions with three or more listed inventors. That rise is coupled with a proportional decrease in the proportion of solo inventions. Interestingly, the proportion of two-inventor patents has stayed relatively steady throughout the entire time period.

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Some areas of technology lend themselves to team work. Biotech research and drug development is typically extremely expensive and done in structured teams while lower-tech areas may not be so structured. Compare, for instance patents in classes 514 (drugs) and 435 (chemistry of molecular biology) with patents in classes 135 (tents) and 297 (chairs). The first group averages three times the number of inventors as the second group.

It may also be that team-built inventions are more likely to get funding and be patented. Thus, non-US applicants are more likely to spend patenting money in the US on multi-inventor applicants. Likewise, multi-inventor applications are likely to have larger patent families through continuations and CIPs.

The rugged individualists are still out there – they are just getting more lonesome.

Notes:

  • This data is derived from a sample of 750,000 patents issued from August 1971 through February 2009. All reported results are significant at the 99% confidence level.

27 thoughts on “The Changing Nature Inventing: Collaborative Inventing

  1. One of the reasons is working of extremely high-tech research is very expensive and even time consuming for an individual or small team. In addition, while doing the complex work it is not necessary every individual is an expert in all fields. The other reason could be, the persons involved in such projects desired that their work shall be applicable in the industry as early as possible and reduce the risk of everything involved. When we compare the technology to earlier available technologies, it is quite advanced and in addition, efforts are made to make it further advance it. The extra benefit of such methodology is that they share knowledge and technology. This platform is beneficial for individual inventors or small start-ups.

  2. Evil Dave got it right. Within corporations, politics play as much a role on listing of inventors as anything. People don’t want to see team members get miffed because they were shut out on the patent on their team’s product. I’m surprised that inequitable conduct isn’t alleged more with respect to the inventorship entity. It succeeded in perseptive biosystems.

  3. I would hypothesise that a key driver of the multiple inventors trend is simply the rise of communication technologies that facilitate collaboration.

    The open source movement bears this out in another field so no reason for patentable inventions to be any different.

  4. GPope,

    I understand your point; however, I was merely stating that the “invention” (bogus or not) with genes, (and in the case of Dr. J. Thompson, stem cells) is in the isolation and purification. Whether the underlying rationale is faulty or not is a debate for another day. I tend to slightly agree with you on that point, however, but not in total.

    Peace,
    t.

  5. “66. The fraud and deceit of DEFENDANTS do not end with this despicable
    plagiarism and copyright violation. In U.S. Patent Application 11/003,941, DEFENDANTS
    submitted a declaration dated August 15, 2007 signed by CALOS under penalty of perjury in a
    response to an Office Action and once again in an Appeal Brief dated November 16, 2007. (A
    copy of the August 15, 2007 Declaration is attached as Exhibit 10). This declaration was critical
    to the argument that CALOS had previously conceived the invention before the effective date of
    the prior art – in other words, without this declaration CALOS had no basis to claim priority to
    the invention and the patent application would fail. Turning to the declaration, CALOS
    unequivocally states:”

    Is that the o f$*& moment?

  6. Tom – “”"”"Just a nuance here, but the invention is in the isolation and purification of the gene.”"”"”

    Hah!

    If you say so.

    (BTW – I know what the gymnastic rationale was for allowing gene patents, I just think it’s funny that people actually think “”concentrating”" a gene is somehow inventive [it's never really either pure or isolated])

  7. “Too bad this blog has turned into a law professor’s scholarly research posting site.”

    Scholarly? I’d say from the hip at best.

  8. x:”It is very hard to prove improper inventorship for having too many inventors. Much easier (but still difficult) to prove if an inventor is left out.”

    Speaking of which, the complaint in this Stanford case alleging failure to name a grad student as an inventor is a juicy read:

    link to patentdocs.typepad.com

  9. Collaboration is for sissies, and law professors.

    “It may also be that team-built inventions are more likely to get funding and be patented.”

    Hogwash.

    With exceptions of course, some companies like “teams” of inventors so that if the guy that really thought it all up becomes uncooperative, the other “inventors” can allow the company to proceed to exploit the invention without the holdout.

  10. GPOPE says: “How many inventors are there when somebody says, “you know, we really ought to isolate the —– gene in arabidopsis.”

    Um? Really, none, but, if we allow for the erroneous proposition that genes are inventions, then one.”

    Just a nuance here, but the invention is in the isolation and purification of the gene.

  11. It is very hard to prove improper inventorship for having too many inventors.

    Much easier (but still difficult) to prove if an inventor is left out.

  12. David said: “he change to the patent law in the 1980s that removed the requirement that all named inventors on the patent also be inventors for each and every claim. Removing that requirement made it much easier for naming multiple inventors in which each inventor only had to be associated with one claim.”

    Excellent point.

  13. This effect is most probably caused by emerging processes in corporations where groups of employees get together to “brainstorm” and then submit group disclosures where group leaders add people to avoid disincentivizing the group. Patent lawyers have to work harder to determine inventorship and I don’t think that work is being done. Probably a bunch of invalid patents out there.

  14. Wrong inventorship entity = invalid patent? How do you know till you go through discovery. But how do you get discovery if all you have is curiosity?

  15. This makes me wonder whether it’s easier to challenge a patent as being invalid for improper naming of the inventors. The only caselaw that comes to mind is the Erbitux case, where ImClone lost their patent to some Israelis. Any ideas out there?

  16. Too bad this blog has turned into a law professor’s scholarly research posting site.

  17. Is there a problem if later on during prosecution some claims are cancelled? Presumably the application still lists all the “inventors,” even those whose contribution (according to the hypothesis earlier in this thread) was associated only with one of the cancelled claims. Besides the ethical/IE problems of filing false affidavits, you can just imagine the problems later on with assignments and licensing.

  18. Besides the two good reasons noted above [corporate inventor compensation schemes and the statutory change to allow ajoint inventor of only one, not all, of the claims to be on one application], there is the fact that nearly half of U.S. applications come from abroad. In countries like Japan, group credit sharing is more culturally desirable.

  19. A nice story, but I’m surprised you didn’t mention the change to the patent law in the 1980s that removed the requirement that all named inventors on the patent also be inventors for each and every claim. Removing that requirement made it much easier for naming multiple inventors in which each inventor only had to be associated with one claim.

  20. In Europe, when the named inventors waive their right to be mentioned, the Declaration of Inventorship is redacted out of i) the patent publication ii) The Patent Office Register and iii) The Patent Office file open to public inspection. In other words, with or without such redaction, inventorship is nobody’s business but i) Applicant ii) named inventors iii) the Patent Office and iv) the rightful owner, if not the Applicant for the time being.

    Inventors involved in, say, birth control or animal tests might have reason to be grateful.

    To be provocative (as is my wont) I’m really not sure what real significance attaches, to the number of inventors listed on the face of the patent, and how that quantity varies with any other parameter.

  21. Most patents that issue that list 3 or more inventors are, if we take declaration rules seriously, invalid on their face for listing people as inventors who had nothing to do with the claimed invention from a conception stand point.

    Take your average gene patent.

    How many inventors are there when somebody says, “you know, we really ought to isolate the —– gene in arabidopsis.”

    Um? Really, none, but, if we allow for the erroneous proposition that genes are inventions, then one.

  22. “Likewise, multi-inventor applications are likely to have larger patent families through continuations and CIPs.”

    Good point!

  23. Well, the notional “PHOSITA” is, these days, often taken by the courts to be a “team”. And think about somebody on stage accepting a prize for special creativity. When was the last time you heard them say “It was all my own work”? Instead they say “The others in the team deserve it as much as me”. Are we to take that statement seriously?

    Folks, the fun starts when the joint inventors in the team did it sitting at desks and screens in different countries. How do you sort out matters of ownership and employee compensation to meet simultaneously the unharmonised laws of all the countries involved, while keeping all your employee inventors equally motivated? Dennis, do you see a rising number of apps where the addresses of the named inventors include more than one country?

    Picking up on EvilDave, is there not an asymmetry at work here, that is contributing to the rise. Woe betide you if you miss out an inventor. But naming one too many is not likely to have serious consequences, and it does help to keep the troops happy.

  24. In other news, use of the word “paradigm” is up 400% in the last year since a random nobody tried to patent one. As it turns out, the useful art of language was in fact promoted. Thus leading many to believe that patentability of the paradigm may need to be revisited.

  25. I wonder if this is a factor of how corporations incentivize inventors.
    When I worked in-house, you got $1000 for 1 inventor and $500 each for 2 or more inventors. So, time to put everyone slightly related to the idea on the invention disclosure form (cha-ching).
    And managers were almost always listed as inventors. That was simply good office politics.

    As an attorney we merely asked them if they meet the criteria to be an inventor. If they said “Yes”, we simply shrugged and listed them on application.

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