What are the differences between Holder, Inventor, Creator, and Author?
The holder of an Intellectual Property right is a natural or legal person that was conferred the right to impede third parties to commercially exploit its/his/her invention, design, model or product without its/his/her consent. Within the scope of Industrial Property Rights, as instance, a patent, several holders are allowed.
An inventor is a person who contributed to the conception of an invention, which can be protected through a patent or utility model.
The same invention can have several inventors who, traditionally, are natural persons.
Lately the question whether an Artificial Intelligence system developed to be an “inventor” can be legally considered as such has been debated. The issue was raised when, in many patent applications, DABUS (Device for the Autonomous Bootstrapping of Unified Sentience) as a named inventor. DABUS is a neural network designed to create and assess novel ideas, developed by the natural inventor Stephen Thaler. So far, there have been only decisions favorable to DABUS as inventor in Australia and South Africa. The European Patent Office, the UK Intellectual Property Office (IPO) and the USPTO have been so far rejecting the naming of AI systems as inventors. Likewise, in Portugal the law is designed in such a way to consider only as inventor a natural person.
The inventor is always entitled to be named as such in the applications or grant certificates for patents and utility models. The employee-inventor shall be entitled to remuneration, in line with the importance of the invention, if the inventive step is not specifically remunerated under the employment contract, and in case of an employee-inventor or collaborator from a public entity, that includes research and developments activities in its statutory scope, he/she will be entitled at least to participate in the economic benefits resulting from the invention obtained by the legal person.
We call creator/author a person who creates a design that can be protected through a “design or model” or by a “copyright”.
Article 25 of the Portuguese Copyright and Related Rights Code defines the author of a work of design as the creator of the global concept and relevant project. There is no equivalent definition in the Industrial Property Code for the creator of a design or model.
In Portugal, the general rule is that the right to the patent belongs to the inventor or his/her successors in title.
However, there are many special rules regarding patent ownership, including inter alia, those relating to inventions made during the performance of an employment contract, those that although not made during the performance of an employment contract are part of the company business, those regarding the inventions made by special order, as well as those made by an employee or collaborator from a public entity that includes research and developments activities in its statutory scope
The general and special rules regarding the right to the patent are applicable to utility models and to designs or models.
10 February 2022