The Importance of Being First: Economic and Non-economic Dimensions of Inventorship in American and German Law

Abstract

This Article examines the right to be acknowledged as the first inventor of a new technology in patent law. Technological inventions usually result from cumulative research and development, and several people sometimes arrive at the same invention almost simultaneously. However, only one person is usually considered to be the “inventor,” and receives all the credit and honor. This Article focuses on the legal systems of Germany and the United States, comparing how they conceptualize the right to be seen as inventor. These systems have developed in substantially different philosophical and cultural climates: while the German legal system has been deeply influenced by Kantian and Hegelian thought, the American legal system has been inspired more strongly by liberal and utilitarian ideas. These two schools of philosophical thought have different perspectives on the relationship between personal identity and work; while the German tradition emphasizes the deeply personal relation between individuals and their work, the Anglo-Saxon approach is, in general, more instrumentalist and utilitarian with regard to work. One way in which these differences express themselves is the different ways in which the right to be acknowledged as the first inventor is understood and regulated. The right to be acknowledged as the first inventor is deeply connected with one’s identity as a professional, whether an engineer, technician, or scientist. On the other hand, this right does not necessarily have pecuniary significance. Hence, the protection of the right to be considered as the first inventor allows a glimpse into the different visions of identity and work found in these legal systems. This Article examines to what extent German and American legal systems recognize and protect the right to be perceived as the first inventor. It demonstrates that the two legal systems differ profoundly in the ways they perceive and protect the right to be considered as the first inventor. True to its visions of professional dignity, German law carefully protects this right, independently from any pecuniary interests. In contrast, American law grants a remarkably weak protection to the right to be considered as the first inventor, focusing primarily on its monetary aspects. Hence, one can here discover different visions of the role of individuals in society, and specifically of the role of individuals as creators and not just consumers. What is at stake here is whether questions of honor, dignity, and symbolic property, above and beyond material benefits, are recognized as playing a role in the economic system.