Industrial Property Law

Any invention that does not constitute a job-related invention belongs to the employee. However, the legislator intended to give the employer a form of pre-emptive right over inventions that are in any way connected with its business. When an invention is made by an employee either in the course of the performance of his duties, or in the field of the undertaking's activities, or through the knowl …

Independent inventions

Any invention that does not constitute a job-related invention belongs to the employee. However, the legislator intended to give the employer a form of pre-emptive right over inventions that are in any way connected with its business. When an invention is made by an employee either in the course of the performance of his duties, or in the field of the undertaking's activities, or through the knowledge or use of techniques or means specific to the undertaking, or of data provided by it, the employer has the right, under conditions and time-limits set by decree approved in the Conseil d'Etat, to obtain ownership or enjoyment of all or part of the rights attached to the patent protecting his employee's invention (Article L. 611-7, 2° IP Code).

The employer has four months to claim the right of attribution unless otherwise agreed between the parties, which can only be subsequent to the declaration of the invention. This time-limit runs from the date of receipt by the employer of the invention declaration or, in the event of a justified request for additional information, from the date on which the declaration was completed (Article R. 611-7 IP Code).

If the employer claims ownership or use of the invention, the employee must obtain a fair price. The triggering event for payment of the fair price is the realization of the invention. The price is set freely by the parties in accordance with ordinary civil law. The assessment of the fair price must be made on the day the employer exercises his right of attribution, taking into account the prospects of exploitation normally expected at that date . Elements subsequent to this date may nevertheless be taken into consideration to confirm the assessment of the invention's development prospects . It is up to the employee inventor who claims payment of a fair price for an invention attributed to the undertaking to demonstrate that the invention was made outside the scope of his or her work . Failing any agreement between the parties, the fair price is set by the conciliation commission instituted by Article L. 615-21 of the Intellectual Property Code, or by the judicial court, which take into account all elements provided to them in particular by the employer and the employee to determine the fair price on the basis of the initial contributions of both parties, as well as the industrial and commercial usefulness of the invention (Article L. 611-7, 2° IP Code).

All inventions which are not job-related or attributable inventions belong to the employee inventor (Article L. 611-7, 2° IP Code), provided that they are made in a domain completely unrelated to that of the undertaking, without using the undertaking's technical resources. The employer has no specific rights in this respect.

Cass. com. 9 July 2013, LawLex202200000650JB.

Cass. com. 9 July 2013, LawLex202200000650JBJ.

CA Paris, 2 October 2015, LawLex202200010145JBJ.

Industrial Property Law

254. Independent inventions

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254. Independent inventions

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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