Intellectual property rights of an employee

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Date:
03 Mar 2011

In a judgment of 14 January 2011, the Labour Court of Appeals of Brussels defined more precisely the rules concerning intellectual property rights of an employee regarding a patent (invention), and rejected a claim for compensation of an employee.

In a judgment of 14 January 2011, the Labour Court of Appeals of Brussels defined more precisely the rules concerning intellectual property rights of an employee regarding a patent (invention), and rejected a claim for compensation of an employee.

Until now, under Belgian Law there is no statutory scheme for property rights of patents that are developed in connection with the employment contract. On the contrary, specific legal provisions exist regarding for example copyrights, software, design rights, etc. Specific for copyright is that the employer can only acquire them on the basis of an explicit agreement with its employees regarding a transfer of rights. The reverse rule applies concerning software: the employer can claim all rights on software developed in the framework of the employment contract, unless otherwise agreed.

The legal theory and case law concerning patents assumes that a distinction has to be made between service inventions, dependent inventions and free inventions and that only the property rights on service inventions accrue to the employer. In this case, the employer could prove that the employee was charged with an inventive task in the framework of which the invention came about.

The judgment of the Labour Court of Appeals of Brussels points to the importance for the employer to – in the employment contract or a later addendum – insert a correct clause concerning the transfer of intellectual property rights. If not, the employer risks to be confronted with a (potentially high financial) claim of creative employees. Moreover, in these cases the employees can (try to) undermine the proper operation of the business by starting judicial procedures like seizure or summary proceedings.