In that past, the United States Patent law recognized inventors as the original patent owners. Conception of the invention imbues the inventor with an inchoate patent right that can then fully realized realized by successfully completeing patenting process. However this may be changing.
"Inventorship is perhaps the most fundamental question in patent law. The instant an inventor conceives her invention is the moment in which vests her right to a patent, thus perfecting her constitutional right to exclude." (Judge Reyna inDawson writing in dissent). Ownership of that inchoate right is usually transferred to the inventor's employer as required by the individual employment contract. Without such a contract, the inventor retains ownership rights. Although the America Invents Act shifts some weight away from the primacy-of-invention, it does nothing to change this fundamental precept that rights are created at conception and held by the inventor until transferred."
Of the two applications, the Caltech application was both the first invented and first filed. That means that the later ETH Zürich cannot serve as prior art. However, the PTO rejected the Caltech application under the doctrine of obviousness-type double patenting. The doctrine of obviousness-type double patenting is not statutory but instead a judicially created equitable doctrine Normally, this type of rejection is not fatal because the patentee can file a paper known as a terminal disclaimer that both (1) disclaims any term of enforcement that extends beyond the other patent and (2) agrees to that both patents will be co-owned throughout their lifespan. The problem here is that the patents are not co-owned and Caltech cannot make that promise.
It seems to me what happened in this instance is that the USPTO screwed up and should not have issued the second-filed patent (the ETH-Zurich application with different inventive entities named). The proper "solution" to address the "multiple harassment" policy issue is an interference/derivation proceeding, or for the USPTO to recognize its error or initiate re-exam of the second patent sua sponte in view of the earlier filed application.
