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Comparecencia Comisión de Industria 03 03 2015

Presentación de la comparecencia ante la Comisión de Industria, Energía y Turismo del Congreso de los Diputados, el 3 de marzo de 2015
by

Gian-Lluis Ribechini

on 21 October 2015

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Transcript of Comparecencia Comisión de Industria 03 03 2015

EL
SISTEMA
DE
PATENTES

You could even add a caption or narrative to tell the story behind the pictures
SPAIN
Patent Law 1986 (last amended 2011)
Inventions made by an employee during the term of his contract, work or service with a company, and which are the result of research that is explicitly or implicitly the object of his contract, shall belong to the employer.

An employee responsible as an inventor shall have no right to additional remuneration for his achievement, except where his personal contribution to the invention and its importance to the company obviously go beyond the explicit or implicit terms of his contract or work.
Ownership of inventions made by a professor as a result of his research responsibilities in a university and which come within the scope of his teaching and research functions shall belong to the university, without prejudice to the provisions laid down in Article 11 of the Institutional Act on University Reform [Ley Orgánica de Reforma Universitaria].

The professor shall nevertheless have the right to participate in the benefits gained by the university from working or assigning its rights in an invention under the terms of paragraph, above. The university statutes shall define the terms and amount of such participation.
Compensation for an Unlimited Claim
9.–
(1) The employee shall have a right to reasonable compensation as against his employer, as soon as the employer has made an unlimited claim to a service invention.
(2) In assessing compensation, due consideration shall in particular be given to the commercial applicability of the service invention, the duties and position of the employee in the enterprise, and the enterprise’s contribution to the invention.
GERMANY
Law on Employee Inventions 1957 (last amended 2009)
Ascertaining or Fixing Compensation
12.–
(1) The nature and amount of compensation shall be established by agreement between the employer and the employee within a reasonable time after the claim to a service invention.
(2) Where two or more employees have contributed to a service invention, compensation shall be determined separately for each of them. The employer must notify the employees of the total amount of compensation awarded and of the share assigned to each inventor.
(3) Where no compensation agreement is concluded within a
26.–
The rights and duties arising from this Law shall not be affected by termination of the employment relationship.
Employees in Public Service
40.–
Inventions and technical improvement proposals made by employees in enterprises and offices of the Federal Government and state governments, community authorities and other public corporations, corporate bodies and endowed institutions shall be governed by the provisions relating to employees in private employment –with the following provisos:
3. Technical Improvement Proposals
20.–
(1) For technical improvement proposals which afford the employer an advantaged position similar to that obtained from an industrial property right, an employee shall be entitled to reasonable compensation from his employer as soon as the latter exploits the proposal. Sections 9 and 12 shall apply mutatis mutandis.
(2) In all other cases, technical improvement proposals shall be regulated by collective agreements or single–plant bargaining.
Calculating the amount:
"Guidelines for the Remuneration of Employees’ Inventions in Private Employment"
JAPAN
Patent Law 1959 (last amended 2004)
Article 35
(3) Where the employee, in accordance with any contract, employment regulation or any other stipulation, permits the right to obtain a patent for an employee invention or the patent right for an Employee invention, to vest with the employers or grants an exclusive license therefor to the employers the said employee shall have the right to receive appropriate remuneration.
(4) Where a contract, employment regulation or any other stipulation provides for the remuneration provided in the preceding paragraph, the payment of remuneration in accordance with the said provision(s) shall not be considered unreasonable in light of the situation, including the fact that a consultation between the employer and the employee had taken place in order to set standards for the determination of the said remuneration, that the set standards had been disclosed, and that the opinions of the employee on the calculation of the amount of the remuneration had been heard.
(5) Where no provision setting forth the remuneration as provided in the preceding paragraph exists, or where the payment of the remuneration in accordance with the provision(s) of the previous paragraph is considered unreasonable, the amount of the remuneration under Paragraph 3 shall be determined in light of the profit to be received by the employer from the invention, the burden borne and the contribution made by the employer and the benefit received by the employee, in relation to the invention and any other factors.
PEOPLE'S REPUBLIC OF CHINA
Patent Law 1984 (last amended 2010)
Chapter VI Rewards and Remuneration for Inventors and Creators of Service Invention-creations

Article 78
Where an entity to which a patent right is granted fails to conclude with the inventor or creator an agreement on, and fails to provide in its bylaws formulated in accordance with law, the manner and amount of the rewards referred to in Article 16 of the Patent Law, it shall, after the patent for invention-creation is exploited within the duration of the patent right, draw each year from the profits from exploitation of the patent for the invention or utility model a percentage of not less than 2%, or from the profits from exploitation of the patent for the design a percentage of not less than 0.2%, and award it to the inventor or creator as remuneration.
The entity may, as an alternative, by making reference to the said percentage, award a lump sum of money to the inventor or creator as remuneration once and for all.
Where an entity to which a patent right is granted authorizes any other entity or individual to exploit its patent, it shall draw from the exploitation fee it receives a percentage of not less than 10% and award it to the inventor or creator as remuneration.
AUSTRALIA
Patents Act 1990 (last amended 2010)
Part 2—Ownership
15 Who may be granted a patent?
(1) Subject to this Act, a patent for an invention may only be granted to a person who:
(a) is the inventor; or
(b) would, on the grant of a patent for the invention, be entitled
to have the patent assigned to the person; or
(c) derives title to the invention from the inventor or a person
mentioned in paragraph (b); or
(d) is the legal representative of a deceased person mentioned in
paragraph (a), (b) or (c).
(2) A patent may be granted to a person whether or not he or she is an Australian citizen.
In Australia, the Patents Act does not deal with the circumstances in which the employer is entitled to ownership of a patent for an invention made by an employee.

Under Section 15(1)(b) an employer may be entitled to a grant of a patent for employee invention if the employer can establish that he would be entitled to an assignment of the patent.
UNITED STATES OF AMERICA
As a general proposition, there is no rule in the U.S. that an employee must assign his rights in his inventions to his employer.

1. If an employee is not hired specifically for the purpose of inventing anything, then the employee will have ownership and patent rights of whatever he may invent during the course of his employment.

2. If the employee/inventor was "hired to invent," he likely will be obligated to assign his rights as to any invention to the Company.

3. When an employee is hired specifically to invent a particular device or process, the law will invariably require him to assign patent and exclusive rights to the Company.


In Solomons v. United States, the United States Supreme Court indicated that an employer's rights in an employee's invention depend upon whether there is an express agreement between the parties. In general, where there is a valid written employment agreement, the agreement controls. Absent an agreement, the controlling law is the law of the State in which the workplace is located.
Worldwide overview about
remuneration of employees' inventions and innovations
by Gian-Lluís Ribechini Creus
R&D EMPLOYEE :
NO RIGHT TO ADDITIONAL REMUNERATION
R&D EMPLOYEE :
IF "HIRED TO INVENT" ... OBLIGATED TO ASSIGN HIS RIGHTS TO THE COMPANY
R&D EMPLOYEE :
THE PAYMENT OF REMUNERATION SHALL NOT BE CONSIDERED UNREASONABLE

Japan Patent Office in 2004
The Case Studies of the Procedures under the New Employee Invention System
R&D EMPLOYEE : EACH YEAR

FROM THE PROFITS FROM EXPLOTATION ... NOT LESS THAN 2%

FROM THE EXPLOTATION FEE ... NOT LESS THAN 10%
COMPARECENCIA
PROYECTO DE LEY DE PATENTES

FISCALIDAD
DE
PATENTES

RETRIBUCIÓN
DE LAS
PATENTES

Nacional
Europeo
Internacional
1. Las rentas procedentes de la cesión del derecho de uso o de explotación de:
patentes,
dibujos o modelos,
planos,
fórmulas o procedimientos secretos,
derechos sobre informaciones relativas a experiencias industriales, comerciales o científicas,

se integrarán en la base imponible en un 40 por ciento de su importe
, cuando se cumplan los ciertos requisitos.
Ley del Impuesto de Sociedades.
Art. 23 Reducción de ingresos procedentes de determinados activos intangibles.
"PATENT BOX"
Gian-Lluís Ribechini Creus
REPUBLIC OF KOREA
Patent Law 1961 (last amended 1998)
Remuneration for In-Service Inventions

Article 40
(1) The employee shall have the right to obtain reasonable remuneration when he has transferred to the employer the right to obtain a patent or the patent right with respect to an in-service invention, or has given the employer an exclusive license in accordance with a contract or service regulation.
(2) The amount of the remuneration provided for in paragraph (1) shall be calculated in accordance with the profits to be realized by the employer from the invention and the extent of the employer's contribution to the creation of the invention; any suggestion made by the employee as to the method of settlement shall also be taken into account.
(3) If the State succeeds to an in-service invention made by a public official, the State shall provide reasonable remuneration to the public official. Matters relating to the payment of remuneration, etc., shall be prescribed by Presidential Decree.

Ingeniero Industrial
Presidente Comisión de Gestión Empresarial
Asociación/Colegio de Ingenieros Industriales de Cataluña
Constitution for the United States of America
Article. I. Section. 8.
The Congress shall have Power:
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
Full transcript