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The Myth of the Sole Inventor

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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3 Responses

  1. A.J. Sutter says:

    The areas for future research at pp. 103-104 are good points. But if the paper had been written after such research, e.g. speaking with people in industry, rather than before, its insights would seem much less earth-shaking or novel. While this paper might be seminal in that it wakes up scholars, it’s one more example of how IP academics are “discovering” things known to practitioners and businesspeople for decades. Another practical tip: when ML notes that “Most license agreements I have seen don‘t have provisions for the ongoing disclosure of know-how,” (@83) that could be because the transfer of know-how is covered in a separate consulting agreement. While it may vary form industry to industry, the large companies I worked at never in-licensed patents without know-how transfer unless the license was purely defensive. And I always documented that transfer separately. BTW, for more historical examples of collective inventorship see John Lienhard’s How Invention Begins (OUP 2006), not cited in this paper.

  2. For a brief version of why the “sole inventor” (aka starving genius) idea is a myth, here’s part of Richard Stallman’s speech on the dangers of software patents:

    http://www.ifso.ie/documents/rms-2004-05-24.html#starving

  3. RA says:

    The suggestion that the sole inventor is a myth is specious. However, there should be an accomodation for “simultaneous” inspiration.