Decisions are few when it comes to considering the inventor’s right to compensation in accordance with Section 8 of the Danish Act on Employee’s Inventions (Lov om arbejdstageres Opfindelser). Recently the High Court (Østre Landsret) has passed a decision in U.2012.420Ø, confirming that compensations to inventors employed to invent are low.
In the case in question, a dismissed employee filed a claim with the City Court of Odense against his former employer, claiming compensation for transfer of inventions he had made while still employed. During his employment three inventions were transferred to the employer. The inventions had resulted in two patents and one patent application. His claim was not sustained by the City Court, and the case was appealed to the High Court.
The High Court held that the value of the inventions did not exceed what the employee could be expected to deliver under the terms of his employment, even if one of the inventions originated from an independent project based on the inventor’s own idea. The two other inventions originated from customer’s wishes which the employer, as a traditional customer-driven engineering firm, sought to fulfill for the customers.
The employee was, however, awarded a small compensation for a deficient employment contract, due to the fact that the contract contained a clause according to which the employee was never entitled to any compensation. This is in violation of the mandatory interpretation of Section 8 which states that the employee is entitled to a reasonable compensation, even if something else has been agreed upon.
The High Court decision is well in tune with earlier decisions, e.g. the Supreme Court Decision U.2004.1018H, emphasizing that Section 8 is mandatory, and therefore cannot be dispensed from, e.g. not just because the employer did not claim any compensation at the time of transfer.
Kim Garsdal Nielsen, European Patent Attorney
