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Authorship vs. Inventorship: A Critical Distinction in the Age of Artificial Intelligence
By: Dr. Suresh Gupta, Managing Attorney, SPS Associates, Bangalore, Karnataka, India
Thoughts & Threads
SPS Associates - Patent & Trademark Attorneys
Article - 2
Patent Rights vs. Design Rights: A Comparison between India and US Jurisdictions
By: Dr. Suresh Gupta, Managing Attorney, SPS Associates
Article - 1
Authorship vs. Inventorship: A Critical Distinction in the Age of Artificial Intelligence
By: Dr. Suresh Gupta, Managing Attorney, SPS Associates, Bangalore, Karnataka, India
“Authorship acknowledges all contributions, whereas inventorship establishes conception per se.” This fundamental distinction is often misunderstood in academic and research institutions, leading to legal, ethical, and professional implications. Ensuring clarity between the two is crucial for proper recognition, preventing disputes, and upholding research integrity. As Artificial Intelligence (AI) increasingly contributes to research and innovation, this distinction becomes even more complex, raising critical questions about AI’s role in authorship and inventorship.
Authorship in Scientific Journals is based on academic ethics and publication standards rather than legal criteria. An author is a person who has made a substantial contribution to the research, including conceptualization, experimental design, data collection, analysis, interpretation of results, drafting, revising, and approving the manuscript. Unlike inventorship, authorship recognizes contributions across various stages of research and follows ethical guidelines set by organizations such as ICMJE, COPE, ACS, IEEE, Elsevier, Springer, and others.
AI and Authorship: The Ethical Dilemma - AI tools like ChatGPT/ DeepSeek and automated writing assistants are increasingly used in research and manuscript preparation. However, major publishers and ethical committees state that AI cannot be credited as an author, as it lacks accountability and intellectual responsibility. Instead, researchers must disclose AI usage to maintain transparency and uphold research integrity. A key distinction is that authorship does not require patentable contributions to the research work. Nonetheless, contributions such as data collection, literature review, and manuscript writing may qualify someone as an author but not as an inventor. Transparency in authorship decisions is crucial to prevent unethical practices like honorary or ghost authorship.
Inventorship in Patents is a legal determination performed by patent attorneys/ agents by relying on the researcher’s conception records/ Laboratory Notebooks. As per The Patents Act, 1970 (hereinafter referred to as the Act), only true and first inventors can be named in a patent application, Section 2(1)(y) and Section 6(1) of the Act. The ‘True Inventor’ refers to the natural person who has originally conceived the invention, while the ‘First Inventor’ (following a first-to-file system) is the person(s) who first applies for a patent. Importantly, not everyone involved in a research project qualifies as a true and first inventor. A person who merely follows instructions to reduce an invention to practice does not qualify. Similarly, supervisors, funders, or reviewers cannot be named as inventors unless they have directly contributed to the patentable aspects of the proposed invention.
AI and Inventorship: A Legal Challenge - With AI-driven innovations emerging rapidly, the legal definition of inventorship faces new scrutiny. AI systems, such as DABUS, have autonomously generated new inventions, leading to debates over whether AI can be legally recognized as an inventor. Courts in various jurisdictions, including the US, UK, and India, have ruled out that only human inventors can be named on patents. Under current laws, AI is considered a tool rather than a creator, meaning AI-assisted inventions must have human oversight to be patentable. To acknowledge the contributions of human inventors, India introduced the concept of ‘Inventorship Certificate’ (Rule 70A of The Patent Rules 2003), as a standalone acknowledgment, which is not a common practice globally. This certificate ensures that inventors who contribute to an invention but do not own the patent (as it is assigned to an employer or entity) still receive official recognition.
Why the distinction matters? - Misattribution of inventorship or authorship can lead to serious ethical, legal, and commercial consequences.
- Ethical Integrity: Proper attribution safeguards academic integrity, ensuring that true contributors receive rightful credit. This is particularly critical for early-career researchers and students, who may be unfairly excluded due to academic power dynamics. AI further complicates this by raising questions about human contribution to AI-assisted research.
- Legal Consequences: Incorrect inventorship can result in patent disputes. Under Section 28(7) of the Act, an inventor’s name can be removed if wrongfully included. Additionally, wrongful inventorship claims can lead to pre-grant (Section 25(1)(a)) or post-grant opposition (Section 25(2)(a)) of the Act, or even patent revocation under Section 64(1)(b) of the Act. A disputed inventorship claim could also compromise the enforceability of a patent.
- Commercial Impact: Misattributed inventorship would delay or block licensing deals, affecting patent monetization and/or commercialization. Universities and research institutions rely on patent licensing revenue, and incorrect inventorship can lead to ownership conflicts, royalty disputes, and grant/ funding rejections.
- In summary, distinguishing authorship from inventorship is not just a formality but an ethical, legal, and commercial necessity. Proper attribution safeguards IP rights, facilitates commercialization, and upholds research integrity. As AI continues to advance, the research community must establish clear standards and ethical guidelines to ensure responsible authorship and inventorship practices.
Article - 2
Patent Rights vs. Design Rights: A Comparison between India and US Jurisdictions
By: Dr. Suresh Gupta, Managing Attorney, SPS Associates
Intellectual Property (IP) refers to the intangible creations of the human intellect, such as inventions, literary and artistic works, symbols, names, and designs used in commerce. The legal rights granted by a sovereign authority to protect and regulate the use of these creations are known as Intellectual Property Rights (IPRs). As a matter of fact, IPRs are territorial in nature, meaning the protection granted under the laws of one country is enforceable only within its territorial jurisdiction and does not extend automatically to other jurisdictions. There are various categories of IPRs, namely, patents, trademarks, copyrights, designs and geographical indications offering different protections. For instance, patents protect novel inventions and technological advancements whereas designs protect the external aesthetic appearance or ornamental features of a product(s). Provided below is a pictorial representation (example of an electric toothbrush) comparing protection offered by a design registration with a patent right.
The below table provides a comprehensive comparison between patent rights with design registration in India.
| Features | Patent Rights governed by ‘The Patents Act, 1970’ | Design Rights governed by ‘The Designs Act, 2000’ |
|---|---|---|
| Scope of Protection | Invention(s) – composition of matter, products (formulations) or process to prepare the product(s). It covers how something works (functional and technical aspects are protected). Examples: A new drug (composition of matter patent), a novel drug delivery system, a system/ apparatus, a device (mechanical) to perform a task or any process thereof. | External aesthetic ornamental features of the product/ articles. It covers how something looks (ornamental or aesthetic appearance is protected). Examples: Shape of a tablet/ bottle, any pattern on a fabric. |
| Applicants and inventors | Applicant (Assignee/ company) is the owner of the patent and inventors (assignors/ employees) usually assign patent rights to the Applicant. In addition, an individual inventor(s) can serve alone as an applicant(s) and inventor(s). Here, inventor(s) are central, as they contribute to the intellectual skills to solve a technical problem. | No such separate provision for mentioning of inventors per se. But, if required, inventors can be named along with applicants (entities). Generally, only applicants are listed and not inventors because design law doesn’t confer moral rights for inventors and also no technicalities, like in patents, are involved in a design per se. |
| Novelty requirement | Must be absolutely novel, but India offers a grace period of 12 (twelve) months for disclosures done before filing a patent application. | Must be new and original (absolute novelty requirement), no grace period in protecting designs. |
| What is required for filing? | Complete technical details including the experimental data in support of technical claims. The information disclosed must enable a person skilled in the art to perform the invention post-expiry of patent. | It requires different views (as line drawings) namely: front view, top view, bottom view, right side view, left side view, perspective view – requirement of views vary depending on the product in question. |
| Publication | Provides a standard 18 month pre-grant journal publication for free of cost. Alternately, it provides an option for express pre-grant publication (published in less than 3/ 4 weeks) by payment of additional fees. Additionally, it provides post-grant journal publication after a patent application is granted. | No provision for pre-grant publication. Gets published only after design registration is complete. |
| Opposition | Pre-grant opposition [Section 25(1)] can be filed by any person within 6 months from date of publication (18-month or express), but before grant of a patent. Post-grant opposition [Section 25(2)] can be filed by person interested at any time after grant but before the expiry of one year from the date of post-grant journal publication. | No opposition per se. But, any person interested, can file a petition for cancellation [Section 19] of the registered design – no time limit. |
| Copyright | No copyrights in a patent – meaning no protection for creative expressions. If required, need to be protected separately by a copyright. Additionally, copying paragraphs verbatim from one patent application and pasting it in another is not recommended and the same was held in Novartis Gleevec case – see Appendix II of the case law. | Registered designs hold copyright [under Section 11]. Unregistered designs are protected under Copyright Act as an artistic work, until it is applied to more than 50 articles. Unregistered design applied to > 50 articles, copyright ceases as per Section 15(2) of the Copyright Act. Must be registered under the Designs Act if protection is required. |
| Rights conferred | Exclusive right to make, use, sell, import or license the invention [Section 48] | Exclusive right to apply the design to the article. |
| Term of protection | 20 years from filing date, subject to payment of annuity. | 10 years (extendable by 5 years upon payment of annuity). Total: 15 years of protection. |
As regards USA, there is no separate law for design registrations per se, designs are covered under 35 USC Section 171 - patents for designs or design patents. On the other hand, utility patents are covered under 35 USC Section 101. The design application is accompanied by a single claim that characterizes the overall external or visual appearance of the product/ object. The term of the design patent in USA is 15 years (previously it was 14 years) and no need to pay any maintenance/ annuity fee.