Case 13 - Co-Inventorship, Co-Ownership (Modelled on PXE)

Summary

A.1. BASE CASE

PXZ is a patient organisation representing 200 families with a disposition of a malignant form of cancer. Its mission is to sponsor wide research on this form of cancer. It raises money, obliges the researchers it sponsors to identify the director of PXZ as a co-inventor in any future filings for patents, and has a strong interest in having a say in future licensing negotiations.

The big pharmaceutical company BPC is close to coming up with a chemotherapy for this form of cancer. A gene-based therapy developed by a researcher sponsored by PXZ could cut profits on the final chemical cocktail. It considers a challenge to the gene patent as part of its business strategy. Can BPC challenge the patent on grounds of false inventorship?

A.2. COUNTRY REPORTS

(1) BELGIUM

I. Operative Rules

No, BPC cannot challenge this patent on the grounds of false inventorship.

II. Descriptive Formants

Inventorship, i.e. the right to be named as inventor, is a personal moral right, which cannot be transferred (this inalienability is not unanimously accepted, co-inventor will therefore be invalid, but only the real inventor will be able to object to this on the basis of Article 12 BPA (Art. XI.13 BCEL).

Whether or not the real inventor is identified in the patent has no influence on the validity of the patent itself.

Therefore, BPC cannot challenge this patent on grounds of false inventorship.

III. Metalegal Formants

Due to the personal bond between an inventor and his/her creation, the moral right to be named as inventor is personal, inalienable and absolute. This does not mean that the patrimonial right of ownership of an invention cannot be transferred. Indeed, PXZ might very well have validly obtained the ownership or co-ownership of any future inventions.

If, however, a patent is applied for without consent of the real inventor or his/her subsidiary, he/she can either reclaim the patent (Art. 9 BPA, now Art. XI.10 BCEL) or make a claim for its nullity (Art. 49§1 4° BPA, now Art. XI.57§1 4° BCEL).