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20 October 2010
Decree 131/2010, which came into effect on September 2 2010, modifies the provisions on employee inventions in the Intellectual Property Code.(1)
The change amends an employee's right to a fair bonus payment for inventions. Previously, if an employee devised an invention in the performance of an employment contract (where devising such an invention was neither the subject of the contract nor the purpose of the employment relationship), and was not otherwise remunerated for the invention, he or she was entitled to consideration. However, this payment was subject to the employer successfully patenting the invention. Pursuant to the new rules, the patenting condition no longer applies; rather, an employee is entitled to payment by virtue of the employer's use of the invention within a regime of commercial confidentiality (ie, as an industrial or trade secret).
This represents an extension of an employee's right to claim for a fair bonus. Such a bonus must be calculated in light of:
The change in the rules should be considered at the start of the employment relationship and throughout its duration. Specific individual terms should be included in the employment contract which, as far as possible, seek to cover all aspects of employment that relate to possible inventive activity.
The issue of employee inventions is relevant to many industries and fields of work. Even where research does not fall within the scope of an employee's professional activity, there are a vast number of roles in which - particularly, but not exclusively, in connection with his or her tasks - an employee may be responsible for an invention with an application as a trade secret.
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