Under U.S. patent law, a design patent must identify
the true inventor of the subject design.
However, it is not always abundantly clear who should
be named as an inventor, and who is merely assisting an inventor. Design patents
may be obtained by [w]hoever invents any new, original and ornamental design
for an article of manufacture.” 35 U.S.C. § 171 (1994). While inventorship is a question of law, it
is based on underlying facts. When determining inventorship, it is imperative to ask: which individual or individuals “conceived” of the
claimed invention? That is, who conceived the arrangement of elements of the ornamental subject matter represented in the
figures of the design patent. Safco Products Co. v. Welcom Products, Inc., 799 F. Supp. 2d 967
(2011). As there are often many people working to bring the subject matter of a design patent to fruition, this determination is not always so simple. Read on to learn how to identify an inventor, and those merely assisting.
