Patent Inventorship: Not Always So Patently Clear

The South African Patents Act No. 57 of 1978 ("the Act") does not define "inventor" per se, although it is generally understood to refer to a natural person who conceives of something novel in the context of patentability criteria. Unless otherwise provided or agreed, the inventor is the first entitled to file a patent application to have his/her invention protected. Where an inventor is employed to research/invent on behalf of an employer, such inventor has a right to be cited on a patent application as an inventor, whilst the invention is generally assigned to the employer by way of a general assignment in the employment contract, or by a specific assignment for the patent application in question, with the employer being the rightful owner/assignee of the patent application.

Patent applications may be filed in the names of multiple joint or co-inventors. All cited inventors must have contributed to the invention, although not necessarily in equal parts. South African courts have not had to deal with the question of what such a contribution entails, but it is generally considered that each contribution must consist of an inventive step which is not merely imparting knowledge which is known in the art.

A test for identifying an inventor was formulated in the Canadian case of University of Southampton's Applications [2006] RPC 31 (CA), as follows: Firstly, one must identify the inventive concept in the patent or patent application and, secondly, determine who...