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Patents - Law on Employees' Inventions - The Netherlands

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-Is the employee obliged to notify the employer of an invention?

The law does not mention any specific duties for the employee where it concerns employee inventions. An obligation of the employee to inform the employer of the invention and to maintain the confidentiality of the invention could however possibly be based on the general principle that an employee has an obligation to act in the best interests of the employer. A specific provision to this extent can be included in the employment agreement.


-Who becomes owner of employee inventions?

If an invention has been made by an employee, the employee is entitled to the patent unless the nature of the employee's service entails the use of the employee's special knowledge for the purpose of making such inventions. In the latter case, the employer is entitled to the patent.

If an invention has been made by a person who performs services for another as trainee, the person for whom the services are performed is entitled to the patent unless the invention has no connection with the subject of the services.

If an invention has been made by a person carrying out research in the service of a university, college or research establishment, the university, college or research establishment is entitled to the patent.



-Which duties do employers have in relation to employee inventions?

Whether the employer is entitled to the patent follows from the law (see above). It is however possible to deviate from the law in this respect by agreement (see below). When an employer becomes aware of an invention to which the employer is entitled (for instance through notification by an employee), it is up to the employer to arrange the filing of a patent application. 

If an employee were to file a patent application in his/her own name where pursuant to the law or an agreement the employer would be entitled to a patent, the employer can initiate patent entitlement proceedings against the employee before the District Court of The Hague and claim entitlement to the patent or patent application.



-Is the employee inventor entitled to additional remuneration?

If the employee inventor cannot be deemed to have been compensated for not having been granted a patent (in the salary he earns or the pecuniary allowance or extra remuneration he receives), the employer shall be obliged to award the employee inventor equitable remuneration related to the pecuniary importance of the invention and the circumstances under which it was made. 

In Hupkens/Van Ginneken, the Supreme Court however decided that in cases where the employee's special knowledge was applied for the purpose of making inventions of the same kind that is the subject of the patent application, it may generally be assumed that the agreed salary of the employee inventor already comprises a remuneration for the employee not obtaining a patent. The provision on (additional) remuneration must therefore be considered to be an exception to this general rule.



-How is the remuneration calculated?

In TNO/Ter Meulen, the Supreme Court confirmed the decision in Hupkens/Van Ginneken and considered that remuneration can only be awarded if the salary of the employee inventor does not yet comprise remuneration for the employee not obtaining a patent. Remuneration is thus only awarded in exceptional circumstances. Relevant circumstances to be considered in this regard are the position and function of the employee within the organisation, the salary and other employment conditions of the employee, the nature and (monetary) value of the invention and the extent that the employee has contributed to the invention. 


-Are contractual agreements possible?

It is possible to make contractual agreements with respect to the entitlement to inventions made by employees, persons performing services in the context of a training course or researchers. It is however not possible to deviate from the legal provision on the remuneration of the employee inventor.


-Procedural Issues

If the employee inventor wishes (additional) remuneration for his invention, then the employee must claim (additional) remuneration within three years from the date of the grant of the patent.

If an employer or employee wishes to initiate patent entitlement proceedings, then the employer or employee must do so within two years from publication of the mention of grant of the patent. Limitation may however not be invoked by an employer or employee who knew or ought to have known at the time of acquiring the patent that they, or the person who assigned the patent to them, was not entitled to 



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