As a company evolves and aims to grow, inventions can be developed. The employees who participate in these innovations are in fact the main players in their development. They may be the initiative of the employer, or they may result from side projects developed by the employee. Depending on the case, the legitimate applicant may not be the one you think. The aim of this article is to help you protect your invention, and to inform you of your rights as an employee or as an employer.
Who benefits from the employee’s invention?
The French Intellectual Property Code provides a framework for employee inventions. Two conditions must be met for this regime to apply:
- The inventor must have employee status (excluding trainees, contractors, suppliers and partners) to benefit from additional (compulsory) remuneration paid by the company.
- The invention must be patentable (a new technical solution, resulting from an inventive step and capable of industrial application. Exclusions: discoveries, scientific theories, mathematical methods, intellectual or commercial methods, aesthetic creations and presentations of information).
Thus, if a person’s activity within a company is governed by an employment contract, and that person believes that his or her invention is patentable, he or she is entitled to additional remuneration.
The employee must communicate his invention to the employer
To this end, the employee must never conceal his or her discovery from the employer. On the contrary, an employee who makes an invention that he considers patentablemust submit an invention declaration to his employer, proposing that the invention be classified in one of 3 categories. These categories determine the respective rights of the employee and the employer.
The invention of mission
Mission inventions belong to the employer, as they result from the performance of studies and research entrusted to the employee, notably in his employment contract. The employee is, however, entitled to additional remuneration, which is compulsory.
Invention out of mission
A non-assignable invention is made on the employee’s own initiative, either during the performance of his or her duties, or in the company’s field of activity, through the knowledge or use of specific techniques or means provided by the company. It belongs to the employee, but the employer may ask for the invention to be assigned to the inventor in return for payment ofa fair price, or obtain use of it by means of a license if the employee has filed a patent application.
Non-attributable invention
Non-attributable inventions do not fall into either of the above two categories, and therefore belong to the employee (although he must inform his employer), who can decide to exploit them as he sees fit.
The obligation for additional remuneration
Even if the employer is the only legitimate applicant for a patent, he is obliged to pay additional remuneration to his employee.
In the case of mission inventions, or inventions not attributable to a mission, the French Intellectual Property Code sets out an obligation for additional remuneration of the salaried inventor (without specifying the amount or calculation methods, except for public employees in article R611-14-1).
For mission invention :
Employee inventors benefit from additional remuneration, determined by collective agreements, company agreements and individual employment contracts.
For inventions other than attributable missions :
If the employer exercises his right of attribution, he must pay a fair price to the employee-inventor, the amount of which is determined by collective agreements, company agreements and individual employment contracts.
Update: Trainee 2022-2023 & Industrial property: what you need to know
