When a new invention is created (if it is worth anything), everyone wants to take credit. Figuring out whose “baby” it is, is a difficult question.
What is an inventor? Who is the inventor? One would think these questions have straightforward answers. They do not. Inventorship is one of the most difficult and gray areas
A patent must satisfy several requirements in order to be valid. One of these is the written description requirement, as set forth in 35 U.S.C. §112, ¶1. That subsection requires that a patent:
”contain a written description if the invention…in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains… to make and use the same…”
The purpose of the written description requirement is to demonstrate that the inventor is in possession of the invention (i.e., actually invented the claimed invention) as of the date the patent application was filed. In Novozymes A/S v. DuPont Nutrition Biosciences APS, 723 F.3d 1336 (Fed. Cir. 2013), the Federal Circuit Court of Appeals held that a specification that is a “mere wish or plan” does not satisfy the written description requirement. The case is a strong reminder to patent applicants and practitioners that the written description requirement is critical.Continue Reading You Must Describe What You Actually Invented
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