NEW PROVISION IN THE GERMAN ACT ON EMPLOYEES' INVENTIONS REGARDING INVENTIONS AT UNIVERSITIES
by Rainer Bertram, Partner of Grünecker, Kinkeldey, Stockmair & Schwanhäusser

An amendment of § 42 of the German Act on Employees' Inventions has the effect of a considerable restriction of the former privileged status of university lecturers and university assistants. The basic rule that inventions of professors, lecturers and scientific assistants in scientific universities created by them in this capacity were free inventions, has been cancelled.

The new § 42 provides a common provision for all employees at universities independent of the status of the employee.

The inventor is now entitled to publish his service invention within the sphere of his teaching and research activities if this is timely indicated to his employer before, within two months as a rule. If the inventor does not want to publish his service invention because of his teaching and research activities, he is not obliged to report his invention to the employer. If the inventor wants to publish his invention at a later time, he has to report his service invention to his employer immediately.

The employer, i.e. the university, can claim the right to the service invention. The formalities and time limit to claim the right to the invention correspond to the normal regulations of employee inventions in business undertakings, but with the exception that if the employer claims the right to the service invention, the inventor has a non-exclusive right to use the service invention within the sphere of his teaching and research activities.

If the employer exploits the invention, the inventor's remuneration is set to 30% of the earnings of the exploitation.

In general, the new provisions only apply to inventions which were made after February 6, 2002.

Future amendments of basic provisions in the German Act on Employees' Inventions are laid down in a ministerial draft bill dated October 25, 2001. It was intended to decide about said draft within the present parliamentary term but it has not come into force yet.