Inventorship is either the most or least important aspect of a patent, depending on who you ask. For my purposes as a lawyer (and likely yours as a reader), the inventor of a patent rarely has any impact on the substantive issues especially because 35 U.S. Code § 256 allows for correction and specifically states:
The error of omitting inventors or naming persons who are not inventors shall not invalidate the patent in which such error occurred if it can be corrected as provided in this section.
Be it Kodos or Kang, the name on the front usually has only marginal relevance to my work.
Presumably it's a big deal to the scientist.
One of the few areas where the issue can come up is inequitable conduct. This was the case in Equil IP Holdings LLC v. Akamai Technologies, Inc., C.A. No. 22-677-RGA, D.I. 192 (D. Del. Feb. 14, 2025).
The patent asserted in that case shared a specification with an earlier patent, but originally had no inventors in common. When the plaintiff brought an IPR asserting that the earlier patent anticipated the later, the patentee filed the necessary paperwork to add a common inventor to the earlier patent and thus remove it from the world of prior art as it was no longer an invention "by another." The defendant alleged that this change in inventorship was fraudulent and constituted inequitable conduct, and moved to amend its answer to assert the defense.
Plaintiff opposed on the grounds of futility, arguing that—post Therasense—incorrect inventorship cannot constitute inequitable conduct. Judge Andrews disagreed and granted the motion to amend:
Much of Plaintiff’s argument is centered on its contention that incorrect inventorship cannot constitute inequitable conduct. Plaintiff argues that Therasense made Federal Circuit cases involving incorrect inventorship as a basis for inequitable conduct no longer good law. Not a bad argument, but the Federal Circuit has not gone that far.
Id. at 3.
The Court also noted that the particular facts here raised a strong inference that fraud had occurred:
Two patents with the same specification but two completely different sets of inventors raises a strong inference that one set of inventors is not just a mistake but a fraud, and the most reasonable inference is that it is the second set. I think the pleading of the inequitable conduct defense is sufficient so that it should be resolved on the basis of a full factual record.
Id.
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