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Employees who come up with an invention 'by chance' in their place of employment may or may not be entitled to apply for a patent themselves. This depends on the employment contract and type of invention.
Agreement in the employment contract
Before you enter into employment as an inventor, make sure that your employment contract states unequivocally who can file for a patent, who will own the patent and in whose name it will be. Also, make arrangements about who will reap the financial benefits of your inventions, and if there will be a special type of remuneration for you as inventor of a profit-making product. These agreements must be laid down in writing in order to be legally valid. If you are already employed, be sure to examine your employment contract to see whether any agreements have been made with the employer. Often a waiver clause is included in an employment contract, as a result of which each invention that is made by the employee passes to the employer. This makes it absolutely clear and undisputable who is entitled to the patent rights and disputes on the matter are avoided.
Should no agreements have been made, the employee's job description will be decisive. If the job description states that it is the employee's task to carry out research and come up with inventions, the Dutch Patent Act 1995 states that the employer is entitled to apply for a patent on the invention. This also applies to inventions that have been made by several employees.
There are a number of exceptions to this principal rule:
- If an employee has not been taken on to carry out research and make inventions, but nevertheless does make an invention, the patent right accrues to the employee (e.g. a bookkeeper who makes an invention in shipbuilding).
- If an inventor in employment makes an invention in an area other than that for which he has been employed, he receives the patent rights (e.g. an inventor of milking machines who develops a warning mechanism for pedestrian traffic lights).
N.B.: If you are an independent inventor, none of the above applies to you and you can apply for a patent for your inventions yourself.