Employee Inventions Regulated By A New Law In Romania
October 1, 2014
The issue of inventions created by employees of private or public entities, previously regulated in Romania by Law No. 64/1991 of October 11, 1991 on Patents (Romanian Patent Act), is now regulated by a separate act – Law 83/2014 on Employee Inventions (Employee Inventions Act). The Employee Inventions Act that came into force on 29th June 2014 aims to provide clearer definitions and provisions concerning inventions created by employees and to make Romania a stronger destination for foreign investments, especially concerning companies doing research and development (R&D).
DEFINITION OF AN EMPLOYEE
Article 2(1)(a) of the Employee Inventions Act defines an employee as a natural person who provides services for a person of public or private law, under the authority of such person, in return for payment and based on an individual employment contract.
TYPES OF EMPLOYEE INVENTIONS
Article 3(1) of the Act classifies employee inventions into two groups: inventions having an inventive mission and those without an inventive mission.
Inventions having an inventive mission are those inventions that are a result of the inventor’s duties under his individual employment contract and his job description, or a result of other documents mandatory for the inventor, which provide an inventive mission for the inventor.
Inventions without an inventive mission are those inventions obtained during the term of employment and a maximum of two years thereafter, using the knowledge and the experience of the employer, his material resources, information resulting from the activity of the employer or made available by him, and inventions that are a result of the inventor’s professional training and expertise acquired at the employer’s expense and under his care.
DETERMINING THE TYPE OF AN INVENTION
According to Article 4(1) of the Employee Inventions Act, the employer has the authority to determine whether a given invention falls into the first or the second category. After the employee notifies the employer of the invention, which he must do immediately and in a clear manner, according to Article 4(3) of the Employee Inventions Act, the employer has a period of four months to classify the invention, to inform the employee of the classification and to claim the right conferred by the employee’s invention. The four-month term can be longer, if this is provided in the internal company regulations.
If the employee is unsatisfied with the classification of his invention, he can contest it before a competent court, within four months after the employer notifies him of the classification.
TO WHOM DOES THE RIGHT TO THE INVENTION BELONG
The right to an employee invention having an inventive mission belongs to:
- the employer by default, regardless of whether the employer is a public or private entity (Article 5(1) of the Employee Inventions Act);
- the employee, if it was contractually agreed upon beforehand and the employer is a public law entity having an object of activity in the field of research and development (Article 5(2) of the Employee Inventions Act).
The right to an employee invention without an inventive mission belongs to:
- the employer, if he claimed the invention under conditions prescribed by Article 4(3) of the Employee Inventions Act;
- the employee, if the employer does not claim the invention under conditions prescribed by Article 4(3) of the Employee Inventions Act.
Inventions not falling in either of the two mentioned categories belong to the employee, as per the provisions of the Romanian Patent Act.
REMUNERATION FOR EMPLOYEE INVENTIONS
The Employee Inventions Act does not prescribe any special financial compensation to the employee for inventions having an inventive mission.
According to Articles 6 and 7 of the Employee Inventions Act, for the inventions without an inventive mission i.e. those made during the term of employment or two years thereafter, the employee has the right to remuneration set by the employer according to the criteria prescribed by the employer’s internal regulations. If there are no such provisions, the employer must take into account, depending on each case, one or several of the following criteria:
- the economic, commercial and/or social effects arising from the exploitation of the invention by the employer or by third parties, with the employer’s consent;
- the extent to which the employer is involved in carrying out the employee’s invention, the employer’s resources made available therefor included;
- the creative contribution of the employee-inventor, where the invention is created by a plurality of inventors.
With regard to inventions of employees of public juridical legal entities having research and development among their objects of activity, which were claimed by the employer, the employee is entitled to a percentage of the income made by the employer based on the said inventions, which cannot be lower than 30% (Article 11 of the Employee Inventions Act).
The text of the Employee Inventions Act translated to the English language can be found here.
Jasmina Mutabžija
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