An employer (in the scope of this article, PLF will only make mention of the employers being enterprises) and an employee are bound by a labour contract. In this contractual relationship, the employee offers his working effort to receive a corresponding amount of money. Such effort will be used to do the job agreed upon by both parties. However, there has yet to be a regulation stipulating whether the inventions created by the employee during the working process indubitably belong to the employer. The article will answer the question, “Who owns employee innovations according to the Law on Intellectual Property?”.
According to the provisions of the Law on Intellectual Property (2005, with amendment being effective from January 1st, 2023) (hereinafter referred to as the IP Law), a patent is a technical solution in the form of a product or process to solve a problem identified by the application of natural laws. Moreover, according to the provisions of the IP Law, organizations have the right to register inventions when investing funds and material means for authors in the form of assigning jobs, hiring jobs, organizations and individuals assigned to manage general sources to provide gene sources, traditional knowledge about gene sources under contracts to access gene sources and share benefits, unless otherwise agreed upon by the parties or in case of registration of inventions, industrial designs, layout designs as a result of state-funded science and technology tasks.
As expressed above, the employer has the right to apply for a patent when hiring or assigning an employee to create an invention. Once a patent is granted, the employer is legally acknowledged by to be the owner of such invention. In this case, the employee shall have moral rights related to the invention, including being named as author in the patent or being acknowledged as the author in documents in which the invention is published or introduced; the employee might also receive remuneration for the invention they created.
However, on the other hand, the case in which the employee researches and creates an invention without being hired or assigned tasks by the employer has not yet been mentioned in any regulations.
In the case where the employee creates an invention without using any of the employer’s tools, vehicles, or utilities, and not during the labour process or within labour relations: such invention must be deemed intellectual property privately owned by the employee.
On the contrary, depending on labour regulations issued by the employer, the parties may agree to determine the ownership of the invention created by the employee out of the labour relations by using the tools, vehicles, and utilities of the employer.
A labour contract acknowledges the mutual agreement between the parties in labour-related matters. Therefore, to avoid unnecessary disputes, the employer and employee should pay attention to the terms relating to intellectual property when building and drafting a contract.