One of your business’s employees invents something promising. Great news, of course, but who then has the rights to this invention?
There is no straight-forward answer; instead it depends on the arrangements you have made and the nature of the employee’s role. V.O. lawyer Annelies de Bosch Kemper says, “In the Netherlands, the answer depends on the agreements made in the employment contract.”
This might come as a surprise, but a lot of companies do not have any proper agreements in place with their employees on the subject of intellectual property (IP) rights. You will of course have signed an employment contract together, but there will often be very little that refers specifically to IP rights. De Bosch Kemper continues, “I often see discussions arising on this matter in practice. My position is actually very simple: everything needs to be crystal clear for both parties. Make sure that there is nothing incomprehensible or ambiguous in the employment contract and everyone specifically knows their own rights. That goes for IP rights too. Ensure that your employment contract forms part of your IP strategy.”
Employment law and IP
What does the law say in the Netherlands? As a general rule, the law almost always says that a person (inventor, producer, etc.) is the owner of intellectual property rights, who may therefore claim such rights. But this might not be the case if the person in question is a paid employee. In the case of any inventions created as part of an employee’s duties, due to the ‘nature of the employment relationship’, the rights to the invention belong to the employer. Similar exceptions also apply to people undergoing training and researchers. Many of V.O.’s Dutch clients would fall under this exception; their employees are contracted to produce inventions and the client, as the employer, is therefore entitled to the claim to a patent. Conversely, if a receptionist working at a tech company invents something, then her employer will most likely not be entitled to the invention due to the ‘nature of her employment’. Moreover, an employment contract may contain a derogation from this statutory provision.
It is worth including an additional IP rights provision in the employment contract for receptionists as well as employees whose job it is to produce inventions. De Bosch Kemper says, “An employer can never comprehensively revoke all of an employee’s claims in an employment contract. An employee is always entitled to have their name attributed to an invention and there must always be payment of reasonable remuneration to the inventor. That is mandated by law.”
Reasonable remuneration: how much should it be?
De Bosch Kemper continues, “Dutch legislation is not specific on calculating reasonable remuneration, so it is a grey area. Remuneration could be reflected in salary, for example, so once again it’s all about what the employment contract says. Ultimately, if there is disagreement, a judge can subsequently rule on the matter and decide whether reasonable remuneration has been provided.”
If you have any queries about intellectual property and employment contracts, or would like to have your (standard) employment contract reviewed, please contact Annelies de Bosch Kemper at firstname.lastname@example.org.