University professor privilege

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The university lecturer privilege is a term from German law on employee invention and concerned inventions made by employees at a university until February 6, 2002 .

Legal situation until February 6, 2002

In the law on employee inventions of July 25, 1957, the university lecturer privilege was anchored in Section 42 (1) ArbNErfG. According to this, inventions by professors, lecturers and scientific assistants at the scientific universities, which were made by them in this capacity, were free inventions . The inventions were not even subject to the restrictions of other free inventions such as the obligation to notify and offer to the employer. Rather, the university professor's privilege granted freedom of disposal and exploitation of the invention within the framework of the constitutionally guaranteed freedom of teaching and research under Article 5 (3) of the Basic Law.

The employer was to be informed of the exploitation of the invention and the amount of the remuneration according to Section 42 (2) ArbNErfG only if the employer had used special funds for research work that led to the invention. The employer could claim an appropriate share in the proceeds of the invention.

Legal situation since February 7, 2002

Statistical surveys had shown that only 4% of patent applications in the Federal Republic are due to employees benefiting from the university professor's privilege, whereas around 80% of German patent applications come from companies . One reason for this was seen, among other things, in the fact that scientists prefer to publish their results in the specialist press first. This means that a later patent application is no longer possible due to the lack of a grace period because the invention was already known through publication before a possible patent application.

Since there were therefore no signs that the scientific achievements and the efficiency of German university research were linked to the university professor's privilege, the fundamentally guaranteed freedom of research and teaching does not require that researchers at universities be granted unrestricted legal ownership of their research results and it in a changed research and economic policy environment acc. According to Section 2 (7) of the University Framework Act, one of the tasks of the universities is to promote the transfer of knowledge and technology , the universities have been given the opportunity to protect all economically useful inventions in their area and, on this basis, more effectively and more effectively than before to industrial exploitation feed.

With the law amending the law on employee inventions of January 18, 2002, which came into force on February 7, 2002, the university professor's privilege was therefore abolished. The universities were given the opportunity to acquire inventions for exploitation, thereby substantially increasing the number of inventions available to the universities and marketing them profitably. Since then, university employees have essentially been subject to the same regulations as all other employees. The use of an invention and the profit sharing of the inventor are usually regulated by contract between the university and the employee.

However, Section 42 ArbNErfG still regulates certain special features . Mention should be made of the so-called "negative freedom of publication", which means that a university employee may keep an invention secret from his employer if he does not want publication, while employee inventions are generally obliged to notify the employer. It is also stipulated that the employees at universities receive a 30% share in the income generated by the exploitation if the university uses them.

Austria

According to Section 7 (2) of the 1970 Patent Act, the federal government has the right to seize patent inventions made by university members in the federal civil service . The right to take up service inventions is in accordance with Section 106 University Act 2002 at the university.

Switzerland

As a rule, the principles developed in private law or the Code of Obligations directly apply. Art. 332 OR regulates the rights to inventions and designs between employers and employees. Regulations can only exist for professors at universities to the effect that they are originally entitled to the intellectual property rights. However, the law on the Federal Institutes of Technology provides, for example, that the intellectual property created by professors, with the exception of copyrights, is originally acquired by the university, analogous to the regulation for employee inventions ( Art. 36 Para. 1 ETH Law). In addition, the ordinance of the ETH Board on intellectual property in the ETH domain applies .

United States

With the Bayh – Dole Act in 1980, universities were given the right to claim and exploit the inventions of their employees. Employees are obliged to report inventions to their university immediately. Since then, academic honors have not only been measured by the number of publications, but also by the economic success of research. This has led to a restriction of research to developments suitable for transfer , which basic research neglects. The total revenues of all US universities from science transfer and from patenting of developments totaled $ 31.1 billion in the academic year 1999/2000.

literature

  • Marcel Hülsbeck: Knowledge transfer from German universities. Gabler Verlag, Wiesbaden 2011, ISBN 978-3-8349-3321-8 .

Web links

Individual evidence

  1. ↑ Federal Law Gazette I p. 756
  2. ↑ The so-called university professor privilege and the regulation of § 42 Employee Invention Act website of the German University Association , accessed on October 6, 2018
  3. ↑ cf. BVerfG, decision of March 12, 2004 - 1 BvL 7/03
  4. ^ Draft of a law amending the law on employee inventions BT-Drs. 14/5975 of May 9, 2001, p. 5 ff.
  5. ↑ BGBl. I p. 414
  6. ↑ Henning Katz: Current Developments in Research and Development 2004
  7. ↑ §§ 42, 43 ArbNErfG in the version valid from February 7, 2002 University of Mainz, accessed on October 6, 2018
  8. ^ Federal Ministry for Education, Science and Culture : Patents and Universities in Austria. Analysis of patenting activity in the fields of medicine, natural sciences and technology at the Austrian universities 1999-2001 Vienna, 2003
  9. ↑ Ordinance of the ETH Board on intellectual property in the ETH Domain of July 9, 2014 (as of January 1, 2015) Portal of the Swiss government, accessed on October 6, 2018
  10. ↑ Thomas Hoeren : On patent culture at universities - on new paths to the goal ( Memento of the original from December 13, 2015 in the Internet Archive ) Info: The archive link was automatically inserted and not yet checked. Please check the original and archive link according to the instructions and then remove this notice. Science Law Volume 38, Mohr Siebeck 2005, pp. 131–156 @1@ 2Template: Webachiv / IABot / www.uni-muenster.de
  11. ↑ Larissa Leonore Kühler: The orientation of the reforms in the German higher education system - since 1998 - on the model of the American higher education system Munich, Univ.-Diss., 2005, p. 377