Business Innovation and the Law
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Business Innovation and the Law

Perspectives from Intellectual Property, Labour, Competition and Corporate Law

Edited by Marilyn Pittard, Ann L. Monotti and John Duns

Business Innovation and the Law analyses the topical issue of protecting and promoting business research and development. It does so by examining business innovation through the lens of different legal disciplines – intellectual property, labour and employment laws, competition and corporate laws.
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Chapter 7: EU perspectives on employees’ inventions

Marie-Christine Janssens


Typically, literature dealing with employees’ inventions will refer to patent statistics which indicate that the great majority of applications for the protection of inventions are filed today by companies and only very few by individuals. Studies show that today over 90 per cent of patent applications in industrialized countries originate with employed inventors. In view of this reality the lack of any international or European regulations governing this legal area – or even serious attempts in this respect – is all the more remarkable. Amongst the many reasons that may explain this gap, one often refers to the particular nature of the issue of employees’ inventions which is situated at the intersection between patent law and labour law. These two branches of law approach the question relating to the allocation of the rights to an employee’s invention in very different ways, which makes the debate highly political. Simply stated, under labour law it is generally accepted that the employer may, in principle, claim and be entitled to the results of his employees’ work (‘fruits of labour principle’). The employee is compensated for his efforts by means of his salary and possible other advantages or benefits. It is the employment contract that constitutes the legal basis for the employer’s ownership rights. The basic principle of intellectual property (IP), on the other hand, mandates that the rights to the creation or invention originate with the original author/inventor. In patent law, the latter rule follows from the ‘inventor principle’. Hence the employer may only acquire a derivate right.

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