Employee inventions – Part 2: what kind of a reward can the inventor count on?
In case of a work invention takeover (for more on a complete or limited work invention takeover see the last edition of Legal Buzz), the employee inventor has a right to a suitable reward. Employee and employer define the amount and type of a reward in a special agreement, which must be concluded in the three-month period from the work invention takeover, whereby the law only stipulates that the decisive factors for determining the reward are business usability of the work invention, employee’s workplace assignments and employer’s share in the creation of the invention.
Given the difficulty in predicting the future business usability of the invention, a provision that employee and employer can at any time propose an adjustment of the reward if the factors used to determine the reward have fundamentally changed, provides some kind of “insurance” against unfulfilled predictions. The employer, however, cannot demand the return of a reward once paid. This provision is a peculiar one, as the changed factors under the general civil-law provisions present only a ground for unilateral termination of an agreement (an offer or permission from the other party is required to make changes to it).
More specific standards for determining suitable rewards are laid down in the Regulation on Employee Invention Rewards from 2007 (hereinafter: Regulation), which to put it mildly is far from user-unfriendly. Therefore, in practice most often an agreement for a lump sum is made, for which the Regulation stipulates only a minimum amount allowed for these cases (double or five times of the employee’s net salary). It is also worth mentioning that the provisions of the Regulation are only used if they are more favorable for the employee than the provisions of the relevant collective agreement and employment agreement.
The question whether an employee can in advance waive his right to the suitable reward is also interesting. Case law is yet to give a precise answer, although it has explained (in VDSS Judgement Pdp 160/2020) that the Employee cannot in advance waive a right that belongs to him by law. On the other hand, he can dispose freely and also “waive” the right he has already obtained or the claim which has already matured by not invoking or reassigning it or he can settle or agree with the Employer […] in respect thereof.
Author: Martin Pirkovič, Associate
