The basic principle in Belgium is that the patent right belongs to the inventor or his successor in title.
The successor in title can be the employer if the employee is the inventor. However, contrary to the situation in the Netherlands, the Belgian Patents Act does not contain any mechanism for employees, researchers or students who produce the inventions. In Flanders, however, there are decretal regulations for universities and universities of applied sciences in the Flemish Community. These regulations mainly provide that the patent right accrues to the university or university of applied sciences with which the inventor is associated. For employees or freelancers, this must be arranged in the agreement, such as the employment contract, between the two parties. As this does not always happen, case law has been developed on the question concerning the patent right.
Three types of inventions
Three types of inventions have been developed in Belgian case law to determine to whom (the employer or employee) the patent right accrues: the work invention, the free invention or the mixed (or dependent) invention:
1) the work invention: The work invention is the result of a research task that forms part of the employee’s ordinary work or has been specially assigned to the employee, i.e. it is an invention arising from the performance of the employment contract. The employer acquires the patent right to this invention.
2) the free invention: A free invention is an invention that has nothing to do with the performance of the employment contract and is entirely separate from it. In that case, the employee, as the inventor, has the right to apply for the patent.
3) the dependent invention: On the other hand, the dependent invention is the result of the employee’s own efforts, separate from the employment contract, but with a contribution from the employer, such as through the use of machines, a workplace, materials or know-how, whether or not with the consent of the employer. It is not automatically clear with the dependent invention who acquires the patent right to this invention. It will depend on the circumstances of the case and, in the event of a dispute, must ultimately be decided by the court.
Naturally, the inventor retains the right at all times to be mentioned as the inventor in the patent application.
In the absence of a statutory framework for inventions made by an employee, it is therefore important to provide for this properly in the employment contract. However, provisions in the employment contract that automatically lay down that the rights to any inventions of the employee pass to the employer are not enforceable on free inventions. These belong to the employee/inventor. In the case of dependent inventions, case law is divided on the general applicability of such automatic provisions.
Similarly, if your business uses freelancers who work, as it were, in your business, there is no general statutory scheme. Here too, clear arrangements must be made in the agreement between the two parties concerning the patent right in the event of an invention made by a freelancer.