{"id":8477,"date":"2024-08-13T09:42:09","date_gmt":"2024-08-13T12:42:09","guid":{"rendered":"https:\/\/leao.adv.br\/?p=8477"},"modified":"2024-08-13T14:16:34","modified_gmt":"2024-08-13T17:16:34","slug":"a-invencao-realizada-por-empregado","status":"publish","type":"post","link":"https:\/\/leao.adv.br\/en\/a-invencao-realizada-por-empregado\/","title":{"rendered":"The invention made by an employee"},"content":{"rendered":"

Writing about the ownership of inventions resulting from an employee's inventive activity also means addressing the historical evolution of the relationship between employee and employer. The workplace continues to be the great incubator of industrial evolution on the planet, even more so with the recurring adoption of research and development sectors in large companies.<\/p>\n

The Industrial Property Code of 1971, repealed by the Industrial Property Act of 1996, already regulated the relationship between employer and employee with regard to the conception of inventions by employees. Current legislation on industrial property establishes rules to regulate this relationship, taking into account the employee's main activity and the company's participation through remuneration and structuring for the development of innovation. Basically, the legislation tends to assess the contribution of the participants, without disregarding the objectives of the contract.<\/p>\n

The Industrial Property Law, in its articles 88 to 93, regulates the participation of agents, considering some possible scenarios:<\/p>\n

    \n
  1. Exclusive Ownership of the Employer<\/strong>: The patent is the exclusive ownership of the employer when the employee is hired with the specific purpose of developing the invention. In this case, the employee's remuneration will be only that agreed upon, without the need for a bonus, unless the contract provides for it. The law emphasizes that any invention developed by the employee during the first year after the termination of the employment relationship will be considered to have been developed while the employment relationship was still in effect.<\/li>\n
  2. Shared Ownership<\/strong>: The patent is owned by both parties when the research and development of the patent, even if not the object of the employment contract, occurs through the use of the employer's structure and resources. This duality of efforts makes room for co-ownership of the patent in equal parts, that is, fifty percent for each party. If the number of employees is greater than one, the employee's share will be divided by the number of participants involved. The law grants the right to commercially exploit the product to the employer, with fair remuneration to the employee. However, it is noted that, if there is no prior agreement and the patent is not exploited within a period of one year, the patent ownership will pass exclusively to the employee(s), unless there is a legitimate reason for not exploiting it.<\/li>\n
  3. Exclusive Ownership of the Employee<\/strong>: It is the employee's exclusive right to own the patent developed outside of working hours and using their own resources and structure.<\/li>\n<\/ol>\n

    It is important to mention the difference between patent ownership and the moral right of the inventor. So far, we have discussed patent ownership, which is the commercial right over the economic benefit of the patent. The inventor's right, on the other hand, is the recognition of the paternity of the patent, that is, the reference to the creator of an invention. The inventor's right should not be confused with the owner's right, although both may be present in the same person. In the three cases mentioned, only in the third do the inventor's right and the owner's right fall on the same person, in the case of a patent developed by the employee outside of working hours and using his own resources. In the other cases, even if the patent ownership belongs to the employer or is mixed, the recognition of the inventor is guaranteed by law 9,279\/96 in its art. 6, \u00a74.<\/p>\n

     <\/p>\n

    by Eduardo Faitarone do Sim \u2013 Lawyer, Partner at Le\u00e3o IP and Specialist in Intellectual Property at PUCRS.<\/em><\/p>","protected":false},"excerpt":{"rendered":"

    Escrever sobre a propriedade das inven\u00e7\u00f5es resultantes da atividade inventiva de um empregado \u00e9 tamb\u00e9m abordar a evolu\u00e7\u00e3o hist\u00f3rica da rela\u00e7\u00e3o entre empregado e empregador. O ambiente de trabalho continua sendo a grande incubadora da evolu\u00e7\u00e3o industrial do planeta, ainda mais com a ado\u00e7\u00e3o recorrente de setores de pesquisa e desenvolvimento em grandes empresas. O […]<\/p>\n","protected":false},"author":27,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[1],"tags":[],"class_list":["post-8477","post","type-post","status-publish","format-standard","hentry","category-leao-news"],"acf":[],"_links":{"self":[{"href":"https:\/\/leao.adv.br\/en\/wp-json\/wp\/v2\/posts\/8477","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/leao.adv.br\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/leao.adv.br\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/leao.adv.br\/en\/wp-json\/wp\/v2\/users\/27"}],"replies":[{"embeddable":true,"href":"https:\/\/leao.adv.br\/en\/wp-json\/wp\/v2\/comments?post=8477"}],"version-history":[{"count":3,"href":"https:\/\/leao.adv.br\/en\/wp-json\/wp\/v2\/posts\/8477\/revisions"}],"predecessor-version":[{"id":8481,"href":"https:\/\/leao.adv.br\/en\/wp-json\/wp\/v2\/posts\/8477\/revisions\/8481"}],"wp:attachment":[{"href":"https:\/\/leao.adv.br\/en\/wp-json\/wp\/v2\/media?parent=8477"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/leao.adv.br\/en\/wp-json\/wp\/v2\/categories?post=8477"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/leao.adv.br\/en\/wp-json\/wp\/v2\/tags?post=8477"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}