Charting Inventorship: Teams Get the Prize

The primary goal of the patent system is to encourage innovation – “promote the Progress of Science and useful Arts.”  For me, the nature of inventorship is a fascinating pursuit: what are the factors that lead to invention and what are the results of invention?

A major shift over the past few decades in terms of inventors listed on U.S. patents is the rise of team-based inventorship. Back in 1975, the vast majority of U.S. patents were issued to a single inventor.  Since that time, there has been a steady trend toward more inventors-per-patent.  Around 1990 we reached a point where, for the first time, more than than half of US patents listed multiple inventors.  That trend toward more inventors per patents continues today.

Drilling down, the increase is seen in patents with three or more inventors.  The chart below shows the percentage of utility patents with either one listed inventor (downward sloping double line) or three+ listed inventors (upward sloping line).  The drop in the first almost exactly correlates with the rise in the second. Throughout this time, the percentage of two-inventor patents has remained steady at around 25%.

InventorsPerPatent

The chart does not offer any causation explanation.  Is the change is due to the nature of the inventions (i.e., more complex subject matter); the increase in team projects in corporate environment; or the politics of patenting (team projects more likely to get funded); or perhaps teams are better at identifying the valuable innovations; etc. We do know that multi-inventor patents tend to do better on patent scorecards and are more likely to be filed internationally, suggesting that their owners place more value on those patents.  In the U.S., un-assigned patents still tend to be single inventor. That factor may be explained by the reality that most cooperative inventorship endeavors set up a partnership or corporate to at least hold the patent rights.   Some areas of technology (esp: biotech & chemistry) tend to have more inventors-per-patent than the mechanical and software areas.

The chart below considers utility patents 2012-2016 and groups them according to the assignee country provided to the USPTO.  For each country, I looked at (1) the average number of inventors per patent; (2) the percentage of patents with 5+ inventors; and (3) the percentage of patents with only 1 inventor.   There is likely an interesting story to tell about Korea & India — why do they list so many inventors per patent?

AssigneeCountryInventors

 

 

69 thoughts on “Charting Inventorship: Teams Get the Prize

  1. 9

    This is very interesting, but I’m not so sure that it’s unexpected. As patents have moved more from “protecting innovation” to “protecting a company’s bottom line” (no, those two things are not the same thing) the “invention” part has given way to trench warfare . Each company usually has a core set of what they consider to be “high value targets” and they protect them with a type of amorphous probability cloud of junk patents, kind of like the Buggers in Ender’s game protecting their mothership.

    The rise of multiple inventors is symptomatic of this churning out of cannon fodder. Sure, you could argue that as tech gets more complicated you need a larger team to “invent” something…but the other side of that is that when tech gets complicated you need a larger team to churn out more complicated cannon fodder.

    Kind of like in ancient Greece you could give a farmer a stick and he could be a “soldier” whereas today you need at least eight months of boot camp. Both are cannon fodder, but one is better cannon fodder than the other

    1. 9.1

      Davis, I welcome your observation but have a problem falling in with your designation that all incremental improvements are “junk”.

      For me, a culture of continuous striving to make incremental improvements in products is not junk but activity to be welcomed and encouraged. These days there is huge potential for incremental improvements in products, such as stents or pills. And doesn’t AUDI have more patents on A6 details than NASA has overall? I like my A6 to get incrementally better and better.

      Of course, when it comes to Big Pharma’s “evergreening” activity, one can be sceptical, whether some patents are junk. But the hard Generics Boys will clear them out, won’t they, if they are standing in the way of progress and Profit, so where’s the harm?

      I stand by my assertion that, as technology gets more and more mature, a team can spot yet another product performance enhancement, even when no individual inventor can.

      1. 9.1.1

        Max, I have an S5 — I’ve always liked coupes, but an A6 is nice. But, have you every been around one of those RS8’s. My god!

        1. 9.1.1.1

          The RS8? One of my instructing associates in CA nearly bought one but opted in the end for an elegant Maserati. I guess he was swayed by his wife and child.

          The pressure to put a blanket speed limit on the German Autobahn grows, year by year. But Germans appreciate that it would dampen world-wide sales of their nice fast cars. In my 10 year old A6 diesel station waggon though, a steady 220kph is quite fast enough for me.

          Your cool S5 is a different beast entirely, in a standing start along Seaview Boulevard surely leaving me way behind.

          I guess that products of the house of VW are not as fashionable in the USA now as they once were eh? Good time to buy a used RS8?

  2. 8

    The fact that (1) single inventor patents are a decreasing percentage and (2) in the U.S., unassigned patents still tend to be single inventor may suggest that the decrease in single inventor patents is the result of the little guy being shut out of the patent process by changes in patent law and prices (but of course, as pointed out above, the data does not conclusively prove, anything about what the cause is in the increase in the number of of inventors per patent).

    1. 8.1

      David, agreed. The multiple inventor patents are typically from big companies. They are also artifacts of inventor award programs in such companies.

  3. 7

    OT, but oral arguments today were heard today by the CAFC in Immersion Corporation v. HTC Corporation . Panel: Prost, Linn, & Taranto

    This is a case with potentially huge ramifications for all patent applicants (not just computer-implemented junk). The District Court (Richard Andrews, Delaware) construed the term “before” in 35 USC 120 to mean that continuation applications must be filed — wait for it — before the parent patent is granted on terminated, not merely on “the same day.” As a result, Immersion’s patents were tanked by the District Court.

    I can hardly wait to hear what the usual super concerned people who obsess about the clear unambiguous law “written by Congress” have to say about this issue.

    Link to the oral argument: link to cafc.uscourts.gov

    1. 7.1

      MM – I agree with you here. Hence, people should file continuations before the date of issuance or re-write the law to say “no later than” the date of issuance. And, you are also correct that this will have HUGE ramifications if upheld. Scary stuff – people being lulled into a certain mode of practice by the way the agency historically applied the law.

      1. 7.1.1

        people should file continuations before the date of issuance

        No doubt about that. Filing on the issue date is and was terrible practice and has always been something to avoid at all costs.

        1. 7.1.1.1

          This is true hindsight-MM-bot (the K Street Special), but given there is ambiguity and the patent office has gone with the same day is fine, then Chevron tells us we should go along with the PTO.

      1. 7.2.1

        Tell everyone how you intepret the statute, Mr. “Actual Law”.

        What’s holding you back? After all, you’re a very serious person.

        1. 7.2.1.1

          Nothing is holding me back: As I recall though, this is just not that “hot” of an issue.

          But, hey, I am sure that you are going to lump everyone that ever disagrees with you on anything into one great bit “they.”

          1. 7.2.1.1.1

            Nothing is holding me back: As I recall though, this is just not that “hot” of an issue.

            Ah, I see: the “ends” aren’t really that important so who really cares about how the answer is arrived at? Do I have that right?

            1. 7.2.1.1.1.1

              Yet another mischaracterization from Malcolm…

              “Go figure Folks”

              The “Tr011″ reference is your insistence on ” usual super concerned people who obsess about the clear unambiguous law ‘written by Congress'” AS IF that “group of people” must have some noncongruity on THIS issue that you pounced on.

              My comment about not that big of a deal is just that: it is not that big of a deal.

              For me personally, I have ZERO problem with a hard line stance on the actual language.

              But hey, that does not fit your “narrative” about “them,” so you will not likely accept that at face value, will you?

              1. 7.2.1.1.1.1.1

                I have ZERO problem with a hard line stance on the actual language.

                Great to know.

                you will not likely accept that at face value

                Sure I will. I’m just a little surprised you didn’t share your views sooner. Statutory intepretation is one of your favorite topics.

    2. 7.3

      It’s also true that judges could make another judicial exception to allow same-day filing of continuation applications.

    3. 7.4

      I wrote: This is a case with potentially huge ramifications for all patent applicants (not just computer-implemented junk).

      And now I’m going to walk this statement back because the argument audio (specifically the attorney for HTC) informs that the actual number of potentially affected applications is miniscule (less than 1% of patents out there).

      1. 7.4.2

        Less than 1% of applications seems like an underestimate to me. My guess would be 5%, with that 5% representing a major value driver of the patent family since it represents the ability to obtain claims targeted at a particular product.

        1. 7.4.2.1

          Less than 1% of applications seems like an underestimate to me.

          I haven’t read the briefs to see how the number was determined.

        2. 7.4.2.2

          Iit,

          It depends on how one is looking at “potentially affected.”

          One lumping in ALL Cons would be a very different picture than one that looks at Cons filed so late as to actually be affected by the decision.

          This is just NOT that big of a deal.

      2. 7.4.3

        Even less than 1% (presuming it’s still a decent percent of that 1%) is quite a few patents. Indeed, wasn’t it less than 1% that we determined was the number of appealed cases that are ultimately reversed? But still you have people that btch about that near constant.

        1. 7.4.3.1

          Even less than 1% (presuming it’s still a decent percent of that 1%) is quite a few patents.

          About 10,000, according to the oral arguments.

          1. 7.4.3.1.1

            What was the “methodology” shared in the oral arguments?

            Are they calling any continuation as potentially affected, or are they taking a more precise view of only those continuations filed so late that the lateness makes them potentially affected?

    4. 7.5

      I highly recommend checking out the audio. Great argument and discussion from all sides and the judges.

    5. 7.6

      MM, Dennis should run a survey on what practitioners think the law is. That can inform one on whether this is a big or a small issue.

      If the court holds the law to be before when most practitioners think otherwise, a legislative rescue would be in order.

      1. 7.6.1

        Legislative rescue? To rescue whom? Those who employ negligent, careless or carefree patent attorneys?

        For Paris priority, the law has been clear for 100+ years. For the life of me, I cannot understand why the patent statute in the USA requires for a domestic priority that if you file your non-pro on the anniversary date you are one day too late. Perverse, or what?

        And now this. Of course you also have to file your con one day before issue. Just like under the EPC. You know it makes sense. The application from which you are “continuing” is no longer “pending” on the very day of patent issue.

        Where’s the sense in a rescuing those who are the authors of their own misfortune. First in the queue to be rescued should be those who are blameless for their own misfortune.

        1. 7.6.1.1

          While I am not averse to a hard line stance (as I mentioned above), I am also not averse to a viewpoint based on the methodology employed for copyright (the don’t-let-formalities-overwhelm-the-rights view).

          I think that the protests here from MaxDrei ring a little TOO vigorously – as if this is some great “calamity” for missing by a day (or not understanding that ‘same day’ is not good enough).

          It is just NOT that big of a deal, and I have to wonder why this is being made out to be such a big deal or that those who are graced (and it would be a grace) be a softer view are somehow “up to no good.”

          I have no problem even with some “grace” for previous “malfeasants” and a hard line moving forward that CLARIFIES something that is ambiguous.

          Just as I have no problem with NOT providing that “grace.”

          But come people – the sAmeones here protesting so loudly…. Macbeth’s lady comes to mind ;-)

          1. 7.6.1.1.1

            While I am not averse to a hard line stance (as I mentioned above), I am also not averse to a viewpoint based on the methodology employed for copyright (the don’t-let-formalities-overwhelm-the-rights view).

            How would you decide the case if you were a judge?

            1. 7.6.1.1.1.1

              If I were the judge I would listen to each side make their case.

              If that case can be made that there is ambiguity and that other sections of law do not treat analogous items harshly, then that would indicate that the ambiguity here should likewise be treated leniently for the one seeking rights.

              If the case cannot be made, then – as I have indicated – I have no problem following the unambiguous law.

              This is neither difficult, nor exceptional, and certainly NOT as you attempted to Tr011 this as some great big “They are duplicitous and won’t be consistent here” type of bugaboo.

              1. 7.6.1.1.1.1.1

                Funny stuff, “anon”!

                I’m not asking about how you’d decide some hypothetical case. I’m asking about this statute.

                the ambiguity here should likewise be treated leniently for the one seeking rights

                Both parties are seeking rights. I knew this would be hard for you.

                1. It’s not hard at all.

                  As a judge, I would listen to both sides on the merit before making a decision – not sure why you (or anyone) would do any differently.

                  Your tr011ing is only getting worse.

          2. 7.6.1.1.2

            I have to wonder why this is being made out to be such a big deal

            Ask Kevin.

              1. 7.6.1.1.2.1.1

                Kevin was not the one that Tr011ed the topic here.

                But he wrote up a whole post about it at his own blog sometime in the past few months. Maybe you commented on the proper outcome there and I missed it.

                1. AGAIN – you miss the point: Kevin was not the one that Tr011ed the topic here.

                  Someone else saying something else somewhere else in the blogosphere simply is NOT on point to YOU bringing up the subject here in the manner (implying some ‘great’ incongruityof the ‘mysterious’ THEY) that YOU brought the subject up.

                  Obtuse. Is it deliberate? (said in the best Andy Dufresne tones).

                2. you miss the point:

                  No, I’m one the who made the point. And you’re the one proving it.

                  Thanks again!

                  LOL

                3. …you made y point that you are tr011ing the topic and I loved that point.

                  And yet somehow you seem to want to be proud of that…

                  OTay

    6. 7.7

      Regardless of how this issue is resolved, moving forward – it would be a good idea to change the law to allow same-day filing so that continuation practice matches the law for other priority claims such as non-provisional and PCT applications that claim priority to a provisional application.

      1. 7.7.1

        …and that may be a point that leads to “grace” in resolving the ambiguity….

    7. 7.8

      The PTO’s position on allowing continuations to be filed on the issue date of the parent is reasonable. The USDC J who issued this ruling is a mor0n.

      1. 7.8.1

        AAA JJ, I think the PTO’s interpretation is entitled to some deference here given that applicants actually rely on it.

  4. 6

    Lord Coke once said that one could not get a patent on a coat for a new button.

    The CCPA said in Bernhart so what? Where’s the harm in adding the coat when the button is improved?

    Patent attorneys are now taught to claim the entire car when the improvement is to the carburetor — the button to the coat. This improves the royalty base, it is said. It makes the examiner’s job harder because he has to show more elements in rejecting the claims. But the PTO does nothing. The FTC knows nothing. Congress is clueless. And the Federal Circuit … it is bound by precedent even if that precedent is in conflict with controlling Supreme Court authority.

    But really, the combination of a button and a coat is not new even if the claim considered as a whole contains patentable subject matter. The vice of the old combination claim is felt in the courts when considering damages. So, we now struggle with “apportionment.” How much of the value of the coat is attributable to the button?

    The Supreme Court held that one could not repatent old combinations by improving the one element. The statutes require one to particularly point out the invention.

    So, why has the USPTO or some accused infringer not taken Bernhart to the Supreme Court? That case has caused enough damage to the patent system.

    1. 6.1

      Ned revisits his own lack of understanding of the term “optional” – as in, the Jepson claim format is optional.

    2. 6.2

      (it was not the USPTO, Ned – it was Congress – refresh your own reading of Federico on combination claims)

      1. 6.2.1

        anon, OK, when did congress clarify 102(b) to remove the requirement to particularly point out?

        1. 6.2.1.1

          I am not sure that your “version” is what the actual law means Ned.

          In fact, I am pretty sure that your “version” does NOT mean what the actual law means.

          And I can say this because you want the law as (somehow) written by the Supreme Court while I am referencing the law as written by Congress.

          If Congress wanted Jepson format to be anything other than an optional claim format, they knew how to write the law to so state.

          Since they did not, your “version” that equates the law as having something optional NOT be optional, must be wrong.

            1. 6.2.1.1.1.1

              Great.

              Still does not support your “version” that would make an optional claim format somehow be NOT optional.

              This is an easy and straight forward point, Ned. Why are you having such a difficult time with it?

  5. 5

    Since moving into the age of the Applicant as opposed to the pre-AIA inventor as applicant, I’m curious whether these higher numbers reflect a general fear of losing continuity of inventorship down the line in continuation applications IF a broad set of inventors is not initially listed in the application. Also, people that are not listed as inventors typically don’t assign their rights to the Applicant. The balance of harms for listing too few inventors is great (due to failure to list an inventor and failure to effectively transfer ownership) vs. listing too many inventors (any legal downside?).

  6. 4

    Another possibility: IBM will pay a bonus to up to four named inventors on a patent. Perhaps with the institutionalization of the patenting process and benefits given to named inventors, more inventors want to make sure they are on the patent.

    1. 4.1

      I discovered a new law of nature. When we began giving inventor awards for being named on a patent, we got more inventors named on each patent.

    2. 4.2

      I discovered a second law of nature. When we gave one patent award for inventors that had to be shared, we got fewer inventors named on each patent.

  7. 3

    Patents often are directed to more than one invention. A set of claims often cover multiple core inventions and even when it covers only one core invention it often includes a number of claims to possible inventive variations on the core invention(s).

    In the real world, companies file applications with multiple inventions to defer costs. Some engineers, often those in charge of IP and R&D, feel the need to be named on every application they authorize and review, and hence ensure they come up with “something” to add to the claims.

    If one were to tease apart most of these obscuring factors which contribute to statistics, I think it would be clear that each core invention was the idea of one person, variations and further combinations were contributed to by other people, and multiples of these all make their way into the claims of a single patent application.

    1. 3.1

      Anon2,

      I think that you are on to something: there is a certain “sociological” transition that is reflected in the data.

      The question though is how much of this reflection is a “driver,” and how much of it is “noise.”

      A second question may be: to what purpose would “de-personalizing” what it means to be a “single inventor” serve?

      Invention by “juristic person,” anyone? (Put that right up there with Citizen’s United for so-called unintended – but intended – consequences)

    2. 3.2

      Yes but. We are looking for explanations of the gradient of Dennis’s plots over the ten year period.

      I offer two more.

      Prior to 2004, how many patent attorneys got their names on the patent, as a contributing inventor to the claimed subject matter? But they do it now though, don’t they. Is it to claim a share of a possible bonanza?

      Between 2004 and 2014, ever more applications were filed at the USPTO from countries (Japan, Korea) which have an employee-inventor law like that of Germany, under which those named as inventors are in line for “compensation” from their employer if the patent turns out to be a money-maker.

      Is that enough to explain the gradients?

      1. 3.2.1

        They do it now…?

        Not likely as you seem to want to imply. The standard of the patent attorney acting as patent attorney has NOT changed:

        You might try throwing something else against the wall.

      2. 3.2.2

        Your second point is a good point – and might be shown by a correlation graph comparing foreign filings from those identified regions overlayed on the graph above.

        Of course, if that trend of foreign filings has a steeper climb, then the opposite (and counter-intuitive) conclusion might be warranted.

    3. 3.3

      Anon2 – I completely agree with your idea that many core inventions are the work of a single individual. To add to your theory, I believe that many co-inventors are merely offering obvious extensions of the initial core concept, necessarily before the main inventor was able to expand the idea to those obvious sub-concepts.

      As a counterpoint, I also have seen and experienced co-inventing between two individuals on a regular basis in which the first person identifies a problem that was overlooked and the second person identifies the solution to that problem, OR the first person identifies a narrow solution to a low-value problem and the second person identifies a broader solution to a high-value problem.

    4. 3.4

      Let’s not forget that the “rules” of claim drafting may also have an effect** – things like “single actor” necessarily contort actual inventions into a claim form that conforms with expected enforcement models***.

      **I might even suspect that the effect may not be consistent based on different art fields, with some art fields having team effects in one direction and other art fields having team effects in an opposite direction.

      *** heaven forbid anyone venture forth the notion that the trend towards team invention should also recognize the concept of team infringement of that team (or individual) invention. Because “enforcement” must be “bad” or something…

      ;-)

  8. 2

    Why so many inventors named in cases emanating from India and Korea? Perhaps because the art fields where those countries file foreign most heavily are fields where teamwork is what counts?

    1. 2.1

      There be cultural differences at play involving taking credit – or not.

      Our US sovereign has had a very different cultural basis.

      1. 2.1.1

        There be cultural differences at play involving taking credit – or not.

        I admire your courage in so clearly staking out a position.

        1. 2.1.1.1

          I admire your “courage” in being so willing to take fault with what I wrote, so let me help you just a little (of course, you probably could have picked this up from the context):

          There becultural differences at play involving

          taking credit –

          or

          not [taking credit].

    2. 2.2

      With regard to Indian inventors, I have noticed a tendency for them to believe that they need to list their bosses as inventors out of respect. They also have a tendency to list everyone associated with a project as inventors out of a fear of potentially offending someone. As a result, the patent practitioner has to explain the law to them so that the correct inventorship is identified. Additionally, engineers in India seem to work in groups of larger teams thus even when the correct inventorship is identified, it does tend to be a larger number of people than in the U.S. or European countries.

  9. 1

    I see a parallel with the concept of the “Person of ordinary skill in the art”. Increasingly, in the patent cases litigated in England, the notional skilled person is deemed to be a team. Now I know that the characteristics of the PHOSITA are not shared by any real living individual. But even so, if the PHOSITA is a team, how much more inevitable is it, that the claimed subject matter was a team effort?

    In mature fields, where intensive patenting of every little contribution to the art has been going on for decades, further progress is hardly imaginable, until two or three real persons collaborate to conceive something new and useful.

    How about in the USA. Is there yet any perception that the PHOSITA might be a team?

    Incidentally, England has got as far as to recognise that the notional team that is relevant for the exploration of obviousness might not be the same team to interrogate about enablement and sufficiency of disclosure. But that’s a whole new can of worms that we don’t need here to tip out on the table.

    1. 1.1

      That team aspect is already here (think jigsaw puzzle pieces)

      But also do not forget about the “thinning” of applications for that very same “expanded” team concept…

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