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

Abstract

This paper considers the right to be acknowledged as the first inventor of a new technology. Technological inventions usually result from accumulative research and development, conducted by different people over decades and centuries. Moreover, sometimes several people arrive at the same invention almost simultaneously. Nevertheless, only one person is usually perceived as the and gets all the credit and honor associated with the invention. Hence, the right to be considered as the first inventor can have profound significance for one's professional reputation and career. This paper focuses on the legal systems of Germany and the United States of America. These systems have developed in substantially different philosophical and cultural climates. Specifically, while the German legal system has been deeply influenced by Kantian and Hegelian thought, the US-American legal system has been inspired by the liberal ideas of John Locke, Adam Smith and others. 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, as a general rule, more instrumentalist and utilitarian. One way in which these differences express themselves is the different ways in which the right to be acknowledged as the first inventor is regulated. This right 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 paper examines to what extent German and US-American legal systems recognize and protect the right to be perceived as the first inventor. It focuses on different aspects of this right, in the framework of patent law and beyond. The paper demonstrates that the two legal systems indeed differ profoundly in the ways they perceive and protect the right to be considered as the first inventor. True to its visions on 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 the monetary aspects of this right. 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 the question of whether or not questions of honor, dignity, and symbolic property, above and beyond material benefits, are recognized as playing a role in the economic system.