Act On Employees Inventions

Original Language Title: Gesetz über Arbeitnehmererfindungen

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Read the untranslated law here: http://www.gesetze-im-internet.de/arbnerfg/BJNR007560957.html

Law on employee inventions ArbnErfG Ausfertigung date: 25.07.1957 full quotation: "Act on employees inventions in the in the Federal Law Gazette Part III, outline number 422-1, adjusted version published recently by article 7 of the Act of July 31, 2009 (BGBl. I p. 2521) has been changed" stand: last amended by article 7 G v. 31.7.2009 I 2521 for more information on the stand number you see in the menu see remarks footnote (+++ text detection from validity) : 1.10.1968 +++) (+++ application cf. § 43 +++) table of contents first section scope and definitions scope § 1 inventions section 2 technical suggestions for improvement § 3 service inventions and free inventions 4 second section inventions and technical improvement proposals of workers in the private service of 1 service inventions notification section 5 recourse to article 6 effect of recourse § 7 free become inventions article 8 remuneration for the use of section 9 (dropped out) § 10 compensation guidelines section 11 finding or fixing the remuneration § 12 copyright registration article 13 domestic patent registration abroad § 14 mutual rights and obligations in connection with the acquisition of Rights article 15 task Copyright registration or of protection law § 16 trade secrets § 17 2. free inventions duty § 18 offer duty article 19 3. technical suggestions for improvement § 20 4 common provisions (dropped out) § 21. mandatory nature of section 22 inequity article 23 confidentiality § 24 commitments from employment § 25 resolution of employment section 26 insolvency proceedings § 27 of 5. arbitration proceedings amicable § 28 establishment of the Arbitration Board section 29 occupation of the Arbitration Board section 30 arbitration § 31 request for extension of the Arbitration Board section 32 proceedings before the Board of arbitration article 33 agreement proposal of the Board of arbitration article 34 unsuccessful termination of the arbitral proceedings article 35 cost of Arbitration § 36 6 judicial procedures conditions for bringing the action section 37 complaint on equitable remuneration § 38 jurisdiction section 39 third section inventions and technical improvement proposals of employees in the public service, civil servants and soldiers workers in public services § 40 officials, soldiers sec. 41 special provisions for inventions to universities section 42 fourth section transitional and final provisions transitional provisions article 43 (dropped out) § 44 implementing rules article 45 expiry rules § 46 (dropped out) section 47 (dropped out) section 48 entry into force of § 49 of first section scope and definitions article 1 scope of application this law are subject to the inventions and technical improvement proposals of workers in the private and in the public service, civil servants and soldiers.

§ 2 inventions are inventions within the meaning of this Act only inventions that are patentable or capable of use patterns.

§ 3 technical suggestions technical suggestions for improvement within the meaning of this law are proposals for other technical innovations that are not patentable or capable of use patterns.

§ 4 inventions and free inventions (1) inventions of workers within the meaning of this Act can be bound or free inventions.
(2) tied inventions (service inventions) are made inventions that either 1 from activities incumbent upon the workers in the factory or in public administration have arisen or 2. significantly based on experiences or work of the operation or the public administration during the duration of the employment relationship.
(3) workers other inventions are free inventions. You but are subject to the restrictions of sections 18 and 19 (4) that paragraphs 1 to 3 shall apply accordingly to inventions by officials and soldiers.
Second section inventions and technical improvement proposals from workers in the privately owned service 1 service inventions § 5 notification (1) who is a worker who has made a Service invention, obliged immediately to report the employer separately in text form and this marked to make, that it is the message of an invention. Several workers at the conclusion of the invention involved, so they can leave together the message. The employer has the date of the receipt of the message to confirm the workers immediately in writing.
(2) in the message, the worker has the technical problem, to describe their solution and effecting the Service invention. Existing records will be accompanied, as far as they are necessary for the understanding of the invention. The message should indicate the workers granted official instructions or guidelines, the used experiences or work of the operation, staff as well as type and scope of its involvement, and to emphasize what sees Exhibitor workers as its own share.
(3) a message that does not meet the requirements of paragraph 2, is considered properly, if the employer within a period of two months, that and in what respect the message requires a supplement. He has the workers, where necessary, with the addition of the message to support.

Use (1) who can an employer take § 6 a Service invention by declaration to the worker to complete.
(2) the use is considered to be explained, if the employer does not free the Service invention until the expiration of four months from the receipt of the proper message (section 5, paragraph 2, sentence 1 and 3) to the employee by declaration in writing.

Effect of use (1) with the use of all assets rights to the Service invention to the employer go over section 7.
(2) measures taken by the workers of a Service invention prior to the receipt, the employer compared to are ineffective, as far as their rights are affected.

§ 8 service inventions vacated a Service invention is free if the employer releases it by declaration in writing. The workers without the restrictions can have a Service invention has become free of sections 18 and 19.

§ 9 compensation for the use of (1) the workers has against the employer, the Service invention in claim has taken a right to equitable remuneration, as soon as the employer.
(2) for the calculation of the compensation, in particular the economic viability of the Service invention, the share of the company at the conclusion of the Service invention, the tasks and the position of the worker in the operation are decisive.

§ 10 (lapsed) - section 11 remuneration policy of the Federal Minister of labour issues after consultation with the acting of the employer and the employee (section 12 of the collective agreement Act) guidelines about measuring the remuneration.

§ 12 assessment or determining the compensation (1) the kind and amount of remuneration should be determined within reasonable time after the Service invention by agreement between the employer and the employee.
(2) If several workers at the Service invention involved, is to determine the remuneration for each separately. The total amount of the remuneration and the shares of the individual inventor to the Service invention, the employer has to announce the participants.
(3) an agreement on compensation is reached within reasonable time after the Service invention, an employer has to set the compensation through a reasoned statement in writing to the employee and to pay according to the setting. The compensation is at least up to set the expiration of three months after granting of the right.
(4) the employee may oppose fixing period of two months by declaration in writing, if he does not agree with the setting. He is not, contrary to the setting for both parties is binding.
(5) several employees to the Service invention involved, so the setting for all involved not binding is, if one contradicts the fixing on the grounds of them, that his share of the Service invention was incorrectly set. The employer is entitled to redetermine the compensation for all those involved in this case.
(6) employers and workers may require consent in another provision of the compensation from each other if circumstances significantly change, which was decisive for the determination or determining the compensation. Reimbursement of already paid remuneration may not be required. Paragraphs 1 to 5 shall not apply.

§ 13 copyright registration in Germany (1) the employer is obliged and alone is entitled to register a registered Service invention domestically to the granting of a right of protection. He has a patentable invention of service to the grant of a patent to login, if not with reasonable appreciation of the industrial applicability of the invention of the utility model protection seems appropriate. The registration has to be done immediately.
(2) the obligation of the employer to register deleted, 1 if the Service invention has become free (section 8);
2. If not log worker agrees.
3. If the provisions of article 17.
(3) not enough employers to use of the Service invention of his obligation and he also causes the registration within a reasonable grace period set by the workers so the workers could cause the registration of the Service invention to the employer on whose name and cost.
(4) the Service invention has become free, so only the employee is entitled to report them to the granting of a right of protection. Had the employer already signed up the Service invention to the granting of protection right, the rights conferred by the registration to the workers go over it.

§ Is the employer entitled to register abroad for the granting of rights 14 patent registration abroad (1) to use of the Service invention.
(2) for foreign States, in which the employer wants to not acquire rights, he has to release the Service invention to the employee and to enable the acquisition of foreign rights. The release should be performed in good time so that workers can take advantage of the priority dates of intergovernmental agreements in the field of intellectual property law.
(3) the employer may at the same time with the share referred to in paragraph 2 reserve a non-exclusive right to use the Service invention in the relevant foreign States against reasonable compensation and require workers considered the obligations of an employer from existing at the time of the share contracts for the Service invention against reasonable compensation for the exploitation of the shared invention in the foreign countries concerned.

§ 15 has mutual rights and obligations in connection with the acquisition of rights (1) the employer the employee at the same time with the registration of the Service invention to the granting of a right of protection to give copies of the registration documents. He has to inform him of the progress of proceedings and to grant him access to the correspondence on request.
(2) the worker has to support the employer upon request in the acquisition of rights and to make the necessary statements.

§ 16 task of the patent application or of the right (1) if the employer prior to fulfillment of the claim of the employee to appropriate remuneration wants to not pursue the registration of the Service invention to the granting of a right or does not maintain the rights granted to the Service invention, he has to inform the workers and handing him on its request and costs to transfer the rights and the documents required for the respect of the law.
(2) the employer shall be entitled to abandon the law, unless the workers within a period of three months after receipt of the notification required the transfer of the right.
(3) at the same time with the communication referred to in paragraph 1 the employer can reserve a non-exclusive right to use the Service invention against reasonable compensation.

Article 17 trade secrets (1) if the legitimate interests of the company require a Service invention reported are not known to be, the employers can refrain from obtaining a right unless he recognises the protection of the Service invention to the employee.
(2) the employer recognizes the protection of the Service invention, so he can refrain from obtaining a right, when he calls the Arbitration Board (section 29) to bring about an agreement on the protection of the Service invention.
(3) in calculating the compensation for an invention referred to in paragraph 1 are also the economic disadvantages to take into account the resulting for the workers, that no patent has been granted on the Service invention.
2. free inventions article 18 obligation (1) the employee who has made a free invention during the term of employment, has immediately by declaration in writing notify the employer. With so much must be communicated about the invention and, if necessary, also about their origin, that the employer can assess whether the invention is free.
(2) denies the employer within a period of three months after receipt of the notification by a statement in writing to the employee, that the invention notified to him was free, so the invention may be no longer as a Service invention in claim (§ 6).
(3) a commitment to the release of free inventions does not exist if the invention is obviously not suitable in the work area of the operation of the employer.

Article 19 provide duty (1) before the employee otherwise utilized a free invention during the duration of the employment relationship, he has first to offer at least a non-exclusive right to use the invention on reasonable terms the employer, if the invention at the time of the offer in the operation of the employer's existing or prepared workspace. The offer can be delivered simultaneously with the communication according to § 18.
(2) the employer does not accept the offer within three months, the franchise goes out.
(3) the employer agrees within the time limit of paragraph 2 to the acquisition of the right offered to him, he claims however, is that the terms of the offer were not adequate, so the Court at the request of the employer or of the employee sets the rules.
(4) the employer or the employee may request a different setting of the conditions if circumstances significantly change, which was decisive for the agreed or laid down conditions.
3. technical suggestions for improvement § 20 (1) for technical improvement proposals, which provide a similar preferential position as an industrial property right, the employer of the employee against the employer has a right to equitable remuneration once this recovered it. The provisions of articles 9 and 12 are to be applied mutatis mutandis.
(2) In addition, the treatment of technical suggestions for improvement of the scheme left by collective agreement or works agreement.
4. common provisions article 21 (dropped out) - section 22 imperative which provisions of this Act can be lawcode not to the detriment of the employee. However, agreements concerning service inventions are allowed for their message about free inventions and technical improvement proposals (section 20 para 1) after their release.

Article 23 inequity (1) agreements concerning service inventions, free inventions or technical improvement proposals (§ 20 para 1), which are permitted under this Act, are ineffective, as far as they are inequitable significantly. The same applies to the determination of the compensation (§ 12 par. 4).
(2) employers and workers can rely on the inequity of an agreement or a determining of the compensation only if they at least assert the inequity until the expiry of six months after termination of the employment relationship by declaration in writing to the other part.

Article 24 confidentiality (1) which has an employer reported him or communicated invention an employee so long secret, as its legitimate interests require this.
(2) the worker has a Service invention so long secret, as she has become free (section 8).
(3) other persons who have acquired knowledge on the basis of this Act by an invention may not evaluate or announce their knowledge.

Article 25 obligations arising from the employment relationship other obligations arising for the employers and the workers from the employment relationship, are through the provisions of this Act not affected as far as is not from the fact that the invention has become free (section 8), otherwise stated.

Section 26 resolution of the employment relationship are the rights and obligations under this Act by the resolution of the employment relationship does not touch.

§ 27 bankruptcy proceedings to use of the Service invention insolvency proceedings over the assets of the employer opens, so the following applies: 1 sells the Service invention with the business operation of the insolvency administrator, so the purchaser occurs of the employer for the time of the opening of insolvency proceedings in the remuneration.
2. the insolvency administrator utilizes the Service invention in the company of the debtor, he has to pay the employee a reasonable remuneration for the exploitation of the company's assets.
3. in all other cases, the insolvency administrator has no later than after one year after commencement of insolvency proceedings to offer the Service invention, as well as related rights positions the employee; In addition, article 16 shall apply mutatis mutandis. Employee does not accept the offer within two months after its receipt, the liquidator may sell the invention without business or give up the right. In the event of sale, the liquidator may agree with the purchaser that undertakes, to pay the worker the compensation pursuant to § 9. Is such a deal is not made, the insolvency administrator has to pay the workers the remuneration from the sale proceeds.
4. in addition the workers may assert his claims for reimbursement according the articles 9 to 12 as insolvency creditors.
5. arbitration § 28 friendly settlements in all disputes between employers and employees on the basis of this Act can be called at any time the Board of arbitration. The Arbitration Board has to try to bring about an amicable settlement.

Article 29 establishment of the Arbitration Board
(1) the Arbitration Board will be established at the Patent Office.
(2) the Arbitration Board may meet outside its Office.

§ 30 of the Arbitration Board (1) the Arbitration Board consists of a Chairman or his representative and two assessors.
(2) the Chairman and his deputy should have the ability to the judicial office under the German judiciary Act. They are appointed by the Federal Minister of Justice for a term of four years. A restoration appeal is admissible.
(3) the assessor should have particular experience in the field of technology to which the invention or technical improvement proposal relates. They shall be appointed by the President of the Patent Office from the members or help members of the Patent Office for the individual dispute.
(4) at the request of one of the parties is to expand the occupation of the Arbitration Board to ever an associate judge from circles of employers and of workers. These assessors are selected by the President of the Patent Office from proposal lists and ordered for the individual dispute. The German referred to in section 11, in addition, trade unions and the independent associations of workers with social or professional political purpose, which are none of this German connected, if a significant number of workers is part of them, of which after the operation if activity inventive services are expected in them are entitled to submission of proposal list.
(5) the President of the Patent Office should select the assessor pursuant to paragraph 4 from the list of those organization, which the person concerned is a member, if the person concerned has given his affiliation to an organization prior to the selection of the Arbitration Board.
(6) the Chairman, the supervision of the Chairman leads the supervision of the Board of arbitration of the President of the Patent Office. The members of the Arbitration Board are not bound by instructions.

Article 31 (1) arbitration the arbitration is carried out by written request. The application should be submitted in two pieces. It should contain a brief statement of the facts as well as name and address of the other party.
(2) the application is made to the other parties with a request by the Chairman of the Arbitration Board, to comment in writing within a certain period to the application.

Section 32 application for extension of the Arbitration Board is the request for extension of the occupation of the Arbitration Board by anyone who calls the Board of arbitration, at the same time with the invocation (§ 31 para 1), by the other parties within two weeks after receipt of the application containing the invocation (§ 31 para 2) to make.

Article 33 proceedings before the Arbitration Board (1) the procedure before the Arbitration Board are sections 41 to 48 1042 apply accordingly § 1 and § 1050 of the civil procedure code. Is section 1042, paragraph 2, of the code of civil procedure shall apply mutatis mutandis, that also patent attorneys and permit holder (article 3 of the second Act amending and transferring rules in the area of intellectual property law by July 2, 1949 - WiGBl.) P. 179), as well as representatives of associations may not be rejected within the meaning of section 11 of the Labour Court law of the Arbitration Board.
(2) in the other, the Arbitration Board determines the procedure itself.
Footnote § 33 para 1 italic: go on. by § 188 No. 2 G v. 7.9.1966 I 557 mWv 1.1.1967. Due to the continued application of permission certificates see § 177 G v. 7.9.1966 424-5-1, section 34 decisions by a majority of votes, article 196, par. 2 of the courts act settlement proposal of the Board of arbitration (1) including Board of arbitration shall apply.
(2) the Arbitration Board has to make a settlement proposal the participants. The settlement proposal is to establish and be signed by all members of the Arbitration Board. On the possibility of opposition and the consequences of non-observance of the opposition period, it is noted in the settlement proposal. The settlement proposal shall be notified to the parties.
(3) the settlement proposal shall be deemed adopted and one draft agreement as concluded the content when one of the parties in the arbitration comes within one month of the notification of the proposal in a written objection.
(4) is one of the parties by unavoidable accident prevents, in time to put the opposition, he shall on request again in integrum to insert. The request must be submitted in writing for the Arbitration Board within one month after the removal of the obstacle. This period is the odds catching up to do. The application must specify the facts on which it is based, and the means with which these facts be made credible. One year after the notification of the agreement proposal can be the re-establishment of rights no longer applied and no longer made up the opposition.
(5) the Arbitration Board shall decide on the request for re-establishment. The immediate appeal will take place according to the rules of civil procedure at the court competent for the seat of the applicant against the decision of the Arbitration Board.

§ 35 unsuccessful termination of the arbitral proceedings (1) that proceedings before the Arbitration Board is unsuccessfully stopped, 1 if the other party does not; expressed within the time limit set according to § 31 para 2
2. If he has, refused to get involved in the proceedings before the Board of arbitration;
3. If within the period of § 34 paragraph 3 a written objection is received one of the parties to the Arbitration Board.
(2) the Chairman of the arbitration board informs the unsuccessful termination of the arbitral proceedings the parties.

Section 36 costs of arbitral proceedings In the proceedings before the Board of arbitration are no fees or expenses charged.
6 legal proceedings § 37 rights requirements for the bringing of the action (1) or legal relationships, which are governed by this Act, may be asserted only by way of action, after is preceded by proceedings before the Arbitration Board.
(2) this does not apply 1 if complaint rights agreement (articles 12, 19, 22, 34) are asserted or the action is based on it, that the agreement is not legally binding;
2. If passed since the invocation of the Arbitration Board in six months;
3. If the workers; resigned from the operation of the employer
4. If the parties have agreed to refrain from the arbitration. This agreement can only be made after the dispute (section 28) has occurred. It requires the written form.
(3) pursuant to paragraph 2 No. 4 is the same an agreement, if both parties to the main proceedings have negotiated orally without assert that the Board of arbitration has not been invoked.
(4) the previous arbitration need not also for requests on the order of arrest or an interim injunction.
(5) the application is admissible after the adoption of an arrest or a preliminary injunction without the limitation of paragraph 1, if the party after §§ 926, 936 of the code of civil procedure, a period has been determined for the bringing of the action.

Section 38 claim to equitable remuneration is dispute over the amount of compensation, so the action can be set also on payment of a reasonable amount to be determined by the Court.

Section 39 (1) jurisdiction for all legal disputes about inventions of a worker for patent litigation by the courts (section 143 of the patent law) regardless of the value of the dispute shall have exclusive jurisdiction. The rules governing the procedure in patent litigation shall apply.
(2) exempt from the rules of paragraph 1 are legal disputes, which have only claims to power a determined or fixed compensation for an invention the subject-matter.
Third section inventions and technical improvement proposals of employees in the public service of officers and soldiers § 40 are employees in the public service inventions and technical improvement proposals from workers who are engaged in businesses and administrations federal, the States, the municipalities and other bodies, institutions and foundations under public law, to apply the rules for workers in the private service with the following provisions : 1 in place of the use of the Service invention can take the employer a fair share to the earnings of the Service invention in claim, if this has been agreed before. In advance binding agreements can be made about the level of participation. An agreement on the level of participation is not concluded, the employer has to set them. § 12 par. 3 to 6 shall apply accordingly.
2. the treatment of technical improvement proposals according to § 20 paragraph 2 can be regulated also by service agreement; Regulations, according to which the agreement on the service agreement may be replaced by the decision of a higher service or a third party, do not apply.
3 restrictions as to the nature of the use of the Service invention may be imposed in the public interest general arrangement the competent Supreme authority of service the workers.
4. for submission of proposal lists for employer assessors (section 30 paragraph 4), the Federal Government and the State Governments are entitled.
5. as far as public administrations have set up their own schemes for the settlement of disputes on the basis of this Act, the provisions of sections 29 to 32 shall not apply.

Section 41 officials, soldiers
Inventions and technical improvement proposals of civil servants and soldiers are the provisions for workers in the public service to apply accordingly.

Section 42 special provisions for inventions to universities for inventions which at a university employees apply following specific provisions: 1. the inventor shall be entitled to reveal the Service invention in its teaching and research activities, if he in time, generally two months earlier, has shown this the employer. Section 24, paragraph 2 does not apply in this respect.
2. an inventor due to his teaching and research freedom refuses the disclosure of the invention of his service, he is not obliged to report the invention to the employer. The inventor wants to reveal his invention at a later date he has the invention be reported immediately to the employer.
3rd a non-exclusive right to use the Service invention in its teaching and research activities remains. the inventor in the case of the use of the Service invention.
4. the master exploited the invention, is the amount of the compensation of 30 per cent of the revenue generated by the exploitation.
5. § 40 no. 1 does not apply.
Fourth section transitional and final provisions article 43 transitional provisions (1) section 42 in the February 7, 2002 (BGBl. I p. 414) amended this Act will only apply to inventions which have been made after February 6, 2002. By way of derogation from sentence 1 in cases where professors, professors and scientific assistants at a scientific University contractually committed to transfer the rights to an invention to a third party before July 18, 2001, continue to apply to section 42 of the Act on employees inventions in the force until February 6, 2002 until February 7, 2003.
(2) for the before 7 February 2002 at a University by the employees the provisions of the Act on employees inventions in the force until February 6, 2002 version are made inventions to apply. The right of professors, lecturers and research assistants at a scientific Academy, to provide their prior inventions made February 6, 2002 the employer, remains unaffected.
(3) on inventions which were registered prior to October 1, 2009, the provisions of this Act in the version applicable up to September 30, 2009 are continue to apply. Sentence shall apply to technical improvement proposals 1.

section 44 (dropped out) article 45 implementing rules of the Federal Minister of Justice is authorised to adopt the implementing provisions necessary for the extension of the occupation of the Arbitration Board (§ 30 par. 4 and 5) in consultation with the Federal Minister of labour. In particular, it can he determine, 1 must meet personal requirements persons which are proposed as associate members from circles of employers or of workers;
2. How are the assessors selected on the basis of the proposal lists for their activities to compensate.

§ 46 expiry rules with the entry into force of this Act following regulations shall be repealed insofar as they are not already entered override: 1. the regulation on the treatment of inventions of allegiance members by July 12, 1942 (Reichsgesetzbl. I P. 466);
2. the implementing regulation on the regulation on the treatment of inventions of allegiance members by March 20, 1943 (Reichsgesetzbl. I P. 257).

section 47 (dropped out) section 48 (lapsed) - section 49 this Act into force shall on 1 October 1957.