Old but good? Employee inventions in Austria and their compensation in practice through the employee invention provisions in Austrian Patent Law

Alfred Radauer, Maximilian Wiesner

Publikation: Beitrag in Buch/Bericht/KonferenzbandKonferenzbeitragBegutachtung


The patent system, through its implied “social contract” in patent law, can be understood as a system to incentivize the creation of inventions and hereafter of innovations – inventors are given exclusive rights by society from which they can reap economic benefits, in exchange for an enabling disclosure of an invention which must satisfy certain criteria. The “social contract” incentive can only work, however, for those who own the patent rights. This would be typically, if one follows employment law, the employer. Hence, the “social contract” of the patent system may not incentivize sufficiently dependent employees, and an additional incentive for an employee to invent can be thought of.

Austria has been the first country world-wide to address this issue and the inherent conflict between patent law (which assigns a priori ownership of a patent to the inventor) and employment law (which assigns ownership of work executed for an employer to the employer) since some 100 years ago. Austrian employee invention law has had since the goals a) to provide, within patent law, clarity as on who owns the patent in the case inventions were made by employees of a firm (including rules for transfer of ownership) as well as b) to provide employees with
adequate compensation, should an employer invoke specified rights to transfer the ownership from the inventor-employee to the firm.

Scientific analyses regarding the impacts of the provisions relating to employee inventions in Austrian Patent Law have hardly been performed. Equally surprising, Austrian legislation has hardly changed: Introduced in 1897, the respective provisions were only amended in significant ways in 1925. The paper therefore addresses three research questions: a) To what extent does the application of the provisions for employee inventions in Austrian patent law lead in practice today to an adequate compensation of employees? b) What are the strengths and weaknesses of the law? c) What can policymakers and IP managers in other countries learn from the Austrian
case in terms of specific compensation and incentive models for employee inventions?
Using a methodological mix of literature analysis, legal analysis as well as qualitative interview research with six IP experts in Austria, we find that the application of the law is in practice challenging due to rather vague stipulations and an in many aspects essentially undefined legal situation. Together, this regularly leads to disgruntlement in the relationship between employers and employee inventors. In this context, the papern discusses areas for improvement, such as the provision of stronger guidelines for calculating the amount of remuneration. Overall, we present thoughts on lessons to be learned from the Austrian case of specifically incentivizing employees to invent
TitelAbstract 18th Annual Conference of EPIP (European Policy for Intellectual Property) Association
PublikationsstatusVeröffentlicht - 13 Sep. 2023
VeranstaltungEuropean Policy for Intellectual Property (EPIP) Conference 2023 - Cracow
Dauer: 11 Sep. 202313 Sep. 2023


KonferenzEuropean Policy for Intellectual Property (EPIP) Conference 2023


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