Employee Inventions Act

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Basic data
Title: Employee Inventions Act
Short title: Employee Invention Act (not official)
Abbreviation: ArbnErfG, ArbEG (both not official)
Type: Federal law
Scope: Federal Republic of Germany
Legal matter: Patent law , labor law
References : 422-1
Issued on: July 25, 1957
( BGBl. I p. 756 )
Entry into force on: October 1, 1957
Last change by: Art. 7 G of July 31, 2009
( Federal Law Gazette I p. 2521 )
Effective date of the
last change: 		October 1, 2009
Weblink: Text of the law
Please note the note on the applicable legal version.

The law on employee inventions is a federal German law on employee invention law , which regulates the subject of inventions and technical improvement suggestions by employed inventors . On October 1, 1957, it replaced the so-called Göring Speer Ordinance .

Overview, systematics

When an employee of a company makes an invention, two principles conflict:

  • the principle of labor law, according to which the employee's performance is covered by his salary and the employer is entitled to further results, and
  • the principle of inventor law, according to which the rights to an invention lie with the inventor.

According to the principle of labor law, the rights to the invention would belong exclusively to the employer, according to the principle of the invention, exclusively to the employee. The Employee Invention Act creates a balance here by

  • grants the employer the rights to the invention and
  • in return, grants the employed inventor adequate remuneration to be paid by the employer for the invention made.

In order to design this system, the Employee Invention Act defines material and procedural law.

Fields of regulation

applicability

In general, the ArbNErfG applies to subjective inventions by an employee that are eligible for patent or utility model, and, if they cannot be protected, to certain technical suggestions for improvement.

Personally

Employee invention law applies in the relationship between employer and employee. However, according to the case law of the ArbNErfG, the employee definition is somewhat different from that in general labor law. Executives are not subject to employee invention law. The ArbNErfG also applies to civil servants, soldiers and university employees, whereby in some cases special provisions apply, but without the above. To change the system. The so-called university professor's privilege, which was once valid for university teachers , was abolished in 2002.

Factual

Only so-called service inventions of employed inventors are covered by employee invention law.

It does not include inventions that an employee makes in areas outside the employer's field of activity.

Information and cooperation obligations

Employers and employees have information obligations and obligations to cooperate with one another so that the various intended effects can occur and measures can be taken.

  • In particular, the employee must report an invention to the employer explicitly, in detail, separately and in writing.
  • If necessary, the employee must support the employer in acquiring property rights.
  • If the employer does not want to register a property right in Germany or abroad, he must release the invention to the employee inventor, but can reserve a right of use.
  • If the employer wants to give up a registered property right, he must inform the employee inventor involved sufficiently well in advance so that the latter can decide whether he wants to exercise his right to transfer back.

There are further information and cooperation obligations.

Transfer of rights, subsequent rights and obligations

An essential effect of the Employee Invention Act is that it can bring about the transfer of rights for the rights to the invention from the employee inventor to the employer, but in return it also creates rights and obligations relating to the administration of rights.

  • If the employer does not release the reported invention, the rights to it pass to him and he is then entitled and obliged to register industrial property rights in Germany and abroad.
  • If the employer does not want to register the invention at home or abroad after the transfer of rights, he must release the rights to the employee inventor in good time, whereby the employer can reserve a right of use.
  • If the employer wants to give up a property right, the employee inventor has a right to retransfer, whereby the employer can reserve a right of use.

There are further provisions on rights management.

Until September 2009, the design of the transfer of rights from the employee inventor to the employer was regulated in such a way that the employer had to formally declare the use of the rights. Since October 2009, the employer's claim has been deemed declared four months after the invention was reported, unless the employer had released the invention.

Inventor remuneration

Another essential effect of the Employee Invention Act is that it grants the employee inventor a claim to appropriate inventor remuneration in return for the transferred rights .

To set the employee inventor's remuneration, the ArbNErfG initially relies on contractual regulations, but also provides guidelines for their determination .

Restriction of freedom of contract

The ideal of employee invention law is an amicable, ie contractual regulation of legal relationships between employer and employee due to the service invention. Nevertheless, it restricts the freedom of contract in two ways:

  • Provisions of the ArbNErfG, such as the transfer of rights or employee inventor remuneration, cannot be changed by blanket agreements in favor of the employer, for example in the employee's employment contract at the beginning of the employment relationship. Such agreements are ineffective from the start ( ex tunc ). However, agreements in individual cases are permitted.
  • If an agreement proves to be “to a considerable extent unfair” for one contracting party, the latter can demand that the other “ ex nunc ” enter into an appropriate agreement. What is “cheap” is the required “reasonable remuneration”.

Dispute settlement

The ArbNErfG expands the available mechanisms for the settlement of disputes between the employee and the employer due to employee invention law.

arbitration board

The ArbNErfG creates with its §§ 28 to 30 the so-called arbitration board according to the law on employee inventions .

The arbitration board is exclusively responsible for questions relating to employee invention law and aims to induce the parties to settle their dispute by mutual agreement.

Civil court

The conventional civil courts can also be invoked in disputes relating to employee invention law. However, apart from a few exceptions, prior application to the arbitration board is an admissibility requirement for a civil action. The jurisdiction for such actions lies exclusively with the patent litigation chambers of the regional courts.

Technical suggestions for improvement

The ArbNErfG also makes statements on so-called technical suggestions for improvement. In the sense of the ArbNErfG, these are suggestions for technical innovations that are not patentable or suitable for utility models. If these grant the employer a preferential position similar to that of an industrial property right, the employee is entitled to compensation from the employer as for an invention that can be protected.

literature

  • Kurt Bartenbach, Franz-Eugen Volz: Employee Invention Act. Comment on the law on employee inventions . 6th edition. Carl Heymanns, Cologne 2019, ISBN 978-3-452-29121-9 .
  • Burkhard Boemke , Stefan Kursawe (ed.): Law on employee inventions. Comment . 1st edition. CH Beck, Munich 2015, ISBN 978-3-406-63881-7 .

Individual evidence

  1. ↑ § 2 ArbNErfG: Applicability for protectable inventions
  2. ↑ § 3 ArbNErfG: Applicability for technical improvement suggestions
  3. ↑ § 1 ArbNErfG: Applicability for employees
  4. ↑ § 40 ff ArbNErfG: special provisions
  5. ↑ § 4 ArbNErfG: Applicability for service inventions
  6. ↑ § 5 ArbNErfG: obligation to notify
  7. ↑ § 15 Abs. 2 ArbNErfG: Obligation to cooperate
  8. ↑ § 13 ArbNErfG: non-registration in Germany, § 14 ArbNErfG: non-registration abroad
  9. ↑ a b c § 16 ArbNErfG: task of property rights
  10. ↑ § 6 ff ArbNErfG: Transfer of rights
  11. ↑ § 13 ff ArbNErfG: Right and obligation to register
  12. ↑ § 22 ArbNErfG: Indispensability
  13. ↑ Section 12 (5) ArbNErfG; Inequity, § 23 ArbNErfG: Inequity
  14. ↑ § 28 ArbNErfG: Arbitration Board
  15. ↑ § 37 ArbNErfG: Klafe permissibility
  16. ↑ § 39 ArbNErfG: Jurisdiction