Inventor remuneration
Under inventors compensation is generally understood as the remuneration received by an inventor of another of the invention made. In the narrower understanding of the term, it is the remuneration that an employee inventor receives from his employer for a service invention made by him (also called " employee invention "). In almost all patent law systems, there are regulations for inventor remuneration in this narrower understanding that restrict the freedom of private law. The applicable regulations in Germany are the subject of this article.
Germany: overview, legal basis
To determine the inventor's remuneration, a major distinction must be made as to whether the issue is to be clarified in application of German employee invention law or without it. It is applicable if, in short, the inventor is a wage earner in a non-managerial position under German labor law.
If the employee invention law is not applicable, the general civil law must be used, in particular the German Civil Code (BGB) . If the employee invention law is applicable, the law on employee inventions , which in its § 1 also names provisions on applicability, and the remuneration guidelines ("RiLis") for determining employee inventor remuneration apply additionally and initially with priority .
Remuneration determination without employee invention right
If employee invention law is not applicable, the principle of freedom of contract applies between the parties within the conventional limits of civil law. This principle does not only apply to questions of remuneration, but also to the upstream question of whether the rights to the invention are transferred from the inventor to others (legal succession) who may have to pay the inventor's remuneration to the inventor.
As part of the freedom of contract, the parties can agree to a greater or lesser extent (material law, procedural law) the applicability of employee invention law. Then it is not applicable by law, but because of the agreement made.
Remuneration provision with employee invention law
In order to speak of inventor remuneration in the sense of employee invention law (then also employee invention remuneration ), a service invention by an employee inventor that has not been approved by the employer is the prerequisite. The general clause in Section 9 of the Employee Invention Act then grants the employee inventor an “appropriate” employee inventor remuneration which the employer has to pay the employee.
The German inventor remuneration system allows different approaches to fulfill the employee inventor's claim defined in this way:
- Provision according to the issued guidelines: The German Employee Invention Act refers to “Guidelines on the assessment of remuneration” ( Section 11 of the Employee Invention Act), according to which the appropriate employee invention remuneration can be determined. The parties can determine the employee inventor's remuneration following this “can-do” provision.
- Agreement: The legal situation on inventor remuneration in Germany allows agreements between the employee inventor and his employer and ultimately also wishes them, but restricts the freedom of design for this in two ways:
- No blanket agreements can be made in favor of the employer for employee inventor remuneration, for example in the employee's employment contract at the beginning of the employment relationship. Such agreements are ineffective from the start ( ex tunc ) ( Section 22 of the Employee Invention Act). However, agreements in individual cases are permitted.
- If an agreement proves to be “significantly unfair” for one contracting party, the other party can ex nunc to enter into an appropriate agreement ( Section 23 of the Employee Invention Act). What is "cheap" is the required "reasonable remuneration" and is then usually what results from the guidelines mentioned above and detailed below.
When it comes to inventor remuneration, the parties often begin with operational practices that can possibly be viewed as agreed. Changes or additions may be made later, in particular with regard to the application of the provisions of the remuneration guidelines.
Remuneration guidelines of employee invention law
Legal position and structure
The compensation guidelines are not necessarily applicable law. But because of their systematic integration, they are of great importance.
They have a total of 43 paragraphs devoted to the various relevant aspects. They were first issued in 1959 and have only been slightly revised in terms of structure and content since then.
Employee inventor remuneration V
The remuneration guidelines implement a system according to which the employee inventor should receive an inventor remuneration V, which is a share A of the invention value E:
Arbeitnehmererfindervergütung: V = E * A
The remuneration guidelines provide the above formula (RiLi No. 39) and then essentially provide guidelines for the application of the formula. But special cases are also addressed.
Inventive value E
The invention value E (RiLi's 3 ff) is primarily determined on the basis of properties of the invention in an economic context. In short, the invention value is the actual advantage that the invention gives a company over the situation without an invention. Invention value is usually not the turnover that a company makes with the invented technology. Licensing considerations can at least give an indication of how high the inventive value could be.
Proportion factor A
The proportional factor A (RiLi's 30 ff) is primarily determined on the basis of the characteristics of the employee inventor in the operational context and the history of the invention. The proportional factor depends on three criteria, each of which leads to separate values a, b, c. These are added up and then lead with a table (RiLI No. 37) to a proportional factor A between 0.02 and 1 (2% to 100%):
- Position of the task (RiLi No. 31 - value number a between 1 and 6): The extent of the initiative with which the employee steered towards working on the field of invention before the actual invention is assessed.
- Solution of the problem (RiLi No. 32 - value number b between 1 and 6): This assesses the extent to which the inventor was supported by the employer on the way to the invention.
- Tasks and position of the employee in the company (RiLi's No. 33 to 36 - value c between 1 and 8): Here the function of the inventor in the company is assessed. Important: the sooner the inventor was determined to make inventions, the lower his share factor is, and vice versa.
If several inventors have made an invention together, they share the inventor remuneration, in case of doubt in equal parts.
taxation
Inventor remuneration for employee inventors is viewed by the tax authorities as income from non-self-employed work. Therefore, the inventor's remuneration is subject to wage tax deduction.
Arbitration board, lawsuit
An arbitration board has been set up at the German Patent and Trademark Office ( Section 28 of the Employee Invention Act) for disputes between employers and employees about employee invention law issues, regularly about the amount of employee invention remuneration . Any of the parties involved can call you. The parties will each present their case and their point of view. With its expertise, the arbitration board must try to persuade the parties to find an amicable, ie contractual, solution to the problem. In its material point of view, the arbitration board usually follows the guidelines for employee inventor remuneration. It does not issue a binding arbitration award.
Before the arbitration board, each party pays its own costs. If a civil action is to be taken, prior application to the arbitration board is a precondition for admissibility of the action.
