Employee inventions

According to labor law, the benefits and productivity of the employee belong to the employer. However, employee inventions are an exception to this situation. In the employee's inventions, the rights arising from the invention belong to the employee. However, in service inventions, Article 115 of the IPC stipulates that the employer may claim full or partial rights over the invention.

WHAT IS SERVICE INVENTION

The employee in the sense of industrial property law is different and comprehensive from the worker. According to Article 2/1-d of the Civil Code, employee refers to "individuals and public officials who are in the service of someone else, in accordance with a private law contract or a similar legal relationship, and who are obliged to fulfill this service relationship in a personal dependence regarding a certain job assigned by the employer." Students and interns also qualify as employees.

Freelancers and distributors are not considered employees within the meaning of the SMK. It is not possible for people who do not have any element of personal dependency to be accepted as employees.

Service inventions are inventions developed by the employee related to his job. SMK defines service inventions as follows: "A service invention is an invention made by an employee as a result of his/her responsibilities in a business or public administration, or during the employment relationship, based largely on the experience and work of the business or public administration." Inventions that do not qualify as service inventions are considered free inventions in accordance with Article 113 of the IPC.

Right ownership of free inventions belongs to the inventor.

RIGHTS AND OBLIGATIONS OF THE PARTIES IN SERVICE INVENTIONS

In service inventions, certain obligations are imposed on the parties. It is possible to list these obligations as notification, fee, patent application and confidentiality obligations.

In addition, the parties also have some side rights and obligations. The employee (inventor) has the right to ask the applicant to state his name. The name of the inventor must be stated upon request. SMK's 120/1. According to the article, the employee has the right of pre-emption. The employee's right to information is another right granted to him by law.

Employee Obligations

1- Notification

When an employee makes an invention, he or she is obliged to notify the employer. The notification period is not regulated in the law and the expression "without delay" is used instead. If the invention is made by more than one person, the notification must be made together. The invention notification explains how the invention was realized. The employer must inform the person who made the notification or those who were present, without delay, of the date on which the notification was received. If the employer does not notify, he/she will be held responsible for any damages that may occur.

Also, according to Article 114 of the SMK;

"The employee must explain the technical problem, its solution and how he realized his service invention in his notification. He/she also gives the employer a picture of the invention, if any, in order to better explain it.

The employee specifies the business experience and work he/she has benefited from, the contributions of other employees, if any, and the form of these contributions, the instructions he/she received regarding the work he/she performs, and his/her own contribution in addition to the contributions in question.”

The employer is obliged to inform the employees which issues need to be corrected within 2 months from the date of receipt of the notification. If such a notification is not made, the transactions are carried out based on the notification submitted by the employee.

According to Article 115 of the Civil Code, the employer can claim full rights over the invention. If the employer requests full rights, he/she will have full rights once this request reaches the employee. In case of a partial claim, the service invention turns into a free invention. In case of a partial right claim, the employer may use the invention based on partial right. In case of a partial claim, the employer is obliged to pay the fee. If the partial right exercised by the employer makes it difficult for the employee to evaluate the invention, the employee may request the employer to give up the use of this right.

SMK's 115/4. According to the article, "The dispositions made by the employee on the invention before the employer claims rights regarding the service invention are deemed invalid against the employer to the extent that they violate the rights of the employer."

2- Confidentiality

We explained above that a service invention can turn into a free invention. If the service invention has not turned into a free invention, the employee has the obligation to keep the invention confidential.

Employer's Obligations

1- Obligation to Make a Patent Application

If the employer claims full rights, he must apply for a patent to TÜRKPATENT. The employer can refrain from applying for a patent only if, as a result of objective evaluation, the invention must be kept as a trade secret.

In case of full rights request, patent applications can also be made in foreign countries. If the employer does not comply with the application obligation, the invention turns into a free invention.

2- Obligation to Pay Price

The employer who claims full or partial rights is obliged to pay a reasonable fee to the employee. In case of a full claim, there is no need to actually use the invention in order for the employee to be entitled to compensation. However, if the employer has claimed partial rights, it will only have to pay in case of actual use.

Receivables arising from inventions are considered privileged receivables.

3- Privacy

Unless the employer has a full claim, the information regarding the invention must be kept confidential.

INVENTIONS OF PUBLIC EMPLOYEES

We have stated that public employees are also considered employees within the scope of the SMK in accordance with the SMK. However, there are some differences between the inventions of private sector employees and the inventions of public sector employees.

SMK's 113/4. Article "Provisions applicable to employee inventions are also applicable to inventions of employees of public institutions and organizations, provided that other legal regulations and the provisions of the contract made between the parties are reserved." It is shaped like. According to the provision, the provisions of the SMK may be eliminated by other legal regulations or contractual provisions.

A second difference arises in the aspect of payment. 115/3 of SMK. Article "The fee to be paid to employees in public institutions and organizations for their inventions cannot be less than one-third of the income obtained from the invention. However, in case the subject of the invention is used by the public institution or organization itself, the fee to be paid cannot be more than ten times the net wage paid to the employee for the month in which the fee is paid, as a one-time payment." It determined the rate of compensation to be paid to public employees.

In case of free invention, public employees cannot be paid.