Remuneration for Employee Inventions

In a recent decision, the Austrian Supreme Court has confirmed its previous case law on the calculation of remunerations for employee inventions.

Austrian patent law provides little guidance with respect to the determination of the rewards owed for inventions made by employees. In this regard, the Austrian Supreme Court argues that casuistic principles, as laid down e.g. in the German guidelines for employee inventions, would not take due account of the particulars of the individual case as required by the Austrian Patent Act.

As a consequence, the amount of the remuneration is calculated by way of an estimation made by the court. For this purpose, the court appoints a court expert, usually a patent attorney, who examines the relevant factors for determining the remuneration. One such factor is the contribution of the employer in the making of the invention, in particular by providing incentives, experience, preparatory works, resources and instructions.

In the case decided, the plaintiff, an employee inventor, appealed against the decision of the 2nd instance, which based its judgment on the finding that the inventor was given a precise target, namely an increase from 10 % to 11.5 % of the Xylose content in a composition.

The Austrian Supreme Court confirmed the decision of 2nd instance, stating that the plaintiff (inventor) did not contribute at all to the formulation of the object underlying the invention. Therefore, the factor “A” determining the object in the calculation was correctly set to 0.15 even though Austrian literature suggests a minimum threshold of 0.25 for the object factor in the overall calculation.

The present case demonstrates that the Austrian Supreme Court is hesitant to give general rules on the calculation of remunerations for employee inventions, and prefers to tie its findings to each particular case. The decision once again states that the German Guidelines need not be followed in Austria.

Johannes Strobl
European Patent Attorney

01.10.2013