Severed hands, eyes, heads, brains. Grave robbing. Deception. Murder. There is no shortage of legal issues in Hammer’s 1957 classic: The Curse of Frankenstein, some of which (spoiler alert) actually landed Victor Frankenstein in prison. But beyond the gore and ghouls are tricky legal issues of another kind: intellectual property. After all, the film is, at its core, a story of invention—the fruits of which sour as the film unfolds. And integral to that story is the relationship between Frankenstein and Paul Krempe, a tutor-turned-partner-turned-frenemy, whose waning enthusiasm for the unnatural process he helped create (?) is part of the souring. This short post focuses on the relationship between both men and discusses the IP-focused question: who invented what?
Who Is An Inventor?
The question of who is an inventor under U.S. patent law can be complicated, particularly when there could be more than one inventor. Under U.S. patent law, identifying the inventor(s) on a patent requires “determining who conceived the subject matter at issue.” See In re VerHoef, 888 F.3d 1362, 1365 (Fed. Cir. 2018). Conception is “the touchstone of invention” and requires “a definite and permanent idea of an operative invention, including every feature of the subject matter sought to be patented.” Id. at 1366. More than one person can be an inventor on a patent, and each person need not contribute equally to the conception of the invention. See id. (describing requirements of a joint inventor).
Who Invented What?
So are Frankenstein and Krempe joint inventors? Since inventions are defined by the patent claims, that answer really depends on the language of the claims. See Egenera, Inc. v. Cisco Sys., Inc., 972 F.3d 1367, 1376 (Fed. Cir. 2020) (“[W]ho should be listed on the face of a patent may vary depending on what, exactly, is claimed.”).
Let’s say, for example, the hypothetical patent claimed a method for reanimating a once-dead organism, or an apparatus for the same. It seems that both Frankenstein and Krempe would have a colorable argument for being co-inventors. After all, the film essentially starts with an uplifting montage of the pair performing experiments together and, ultimately, reanimating a very cute small dog. These scenes were accompanied by Frankenstein’s narration, who noted, among other things:
- “We went on together, probing into the unknown.”
- “To this aim, we finally turned all our energies.”
- “It took us years of unrelenting work to discover what we were seeking.“
- “Then, one night…our efforts were rewarded.”
Frankenstein’s story-telling suggests that both men played some role in conceiving the invention, but, of course, we’d need to dig into the facts a bit more to determine the exact contribution each made. And if that contribution didn’t make it into the actual claim language, then it might be harder to make a case for joint inventorship.
But is Krempe a co-inventor on a method and/or apparatus for reanimating, literally, a patchwork of different human parts (and perhaps even the Creature itself)? A key plot in the film is the deteriorating relationship between Frankenstein and Krempe, which begins just after the two successfully reanimate the dead dog. It seems that Krempe is onboard with their work up to this point, and even wonders aloud about the wonderful future implications of their work. And if the film ended there, then a patent (or more!) bearing both their names might well have been possible.
But of course, that’s not where the movie ended. Frankenstein wanted to go just a bit further with their work, and Krempe was not having it. Numerous times throughout the remainder of the film, Krempe distances himself from Frankenstein and his work in no uncertain terms. For example:
Frankenstein: In six months’ time you’ll rejoice in the fact that you helped me present this achievement to the world. You’ll be as famous as I will.
Krempe (interrupting): No, Victor, infamous. I will not help you, not anymore!
So assuming Frankenstein filed a patent on a method and/or apparatus for reanimating a patchwork of human parts (or the resulting creation itself), Krempe presumably would not want his name listed alongside Frankenstein’s.
But would it be appropriate to exclude Krempe’s name from that patent? Is he a co-inventor of that patent? The answer seems to be “it depends,” but there’s a good case to be made that Krempe contributed to the inventions that led to the creation of Frankenstein’s Creature. Recall that both Frankenstein and Krempe arguably contributed to the inventions that led to the reanimation of the dead dog. And as far as the audience can tell, Frankenstein seems to use similar (if not the same) mechanisms to reanimate an assortment of human parts. Indeed, at one point in the movie, Frankenstein persuades (coerces?) Krempe to help raise the Creature, reminding Krempe that “that apparatus was constructed for dual operation, you know that.” So it’s possible that a Frankenstein patent claiming a method and/or apparatus for reanimating…a patchwork collection of human parts would need to list Krempe’s name (but, as discussed, it would depend on what the claims actually say, and a further assessment of each person’s contributions to the invention).
Finally, note that if Krempe were indeed required to be named as a co-inventor and his name was omitted, someone might later be able to argue that the patent fails to list a required inventor, and is therefore invalid. But that person would probably have a hard time getting Krempe to support that argument. As we learn in the film’s final scenes, Krempe would rather let Frankenstein languish in prison than admit any part of what happened. And, as Frankenstein ironically explained not too much earlier to his spurned lover, “proof, my dear, that’s all the authorities would be interested in. Proof.”
Happy Halloween, folks!