Harmonization of Employee Invention Laws: The Black Hole of the EU's Innovation Policy

Abstract

The European Union has established an almost complete system of protection of intellectual property, in part by harmonizing the laws of its Member States, in part by creating its own titles of unitary protection, in the fields of trade marks, designs and patents even by both harmonization and unification of protection. An area that it has completely neglected, however, is the law of employee inventions although Member States’ national regimes differ considerably, and although it is for 80% to 90% that innovation by patentable inventions rests on the inventive activities of employees in industry and research organizations. This neglect does not only do injustice to the creativity and the rights of employed inventors but affects the proper functioning of the EU’s Internal Market as an innovation market based on dynamic competition and the free movement of workers. This paper is an attempt to rekindle interest in the harmonization of the national laws on employee inventions. It compares the structural differences that exist between the laws of France, Germany and Italy, points out their fundamentally divergent approaches to achieving essentially similar objectives and suggests undertaking a harmonization effort that follows the rationale of all EU harmonization or unification of the law of intellectual property: Modernization of the principles rather than mere approximation of national rules. To this effect, the paper suggests to approach harmonization of national employee invention laws by adopting the very rationale of patent protection – providing for incentives to invest in invention and innovation – also as the guiding principle for the justification and the determination of a remuneration for inventions employees make as a matter or in the context of their employment.

Keywords: Patent law, labor law, employee inventions, inventor principle, classification criteria, remuneration principles, EU harmonization of national employee invention laws