Employee invention outside duties (invention hors mission)

A non-mission invention is an invention made by an employee outside any inventive mission. Article L. 611-7 of the French Intellectual Property Code distinguishes two sub-categories, according to whether or not the invention has a link with the company. That distinction decides the ownership of the title and the price possibly due to the employee.

The attributable non-mission invention

A non-mission invention is attributable where it was made either in the course of the performance of the employee’s duties, or in the field of the activities of the company, or through the knowledge or use of techniques, means or data procured by the company. It belongs to the employee. The employer however has a right of attribution: it may have the ownership or the enjoyment of all or part of the rights attached to the patent attributed to it. It must exercise that right within the regulatory period running from the employee’s disclosure.

The non-attributable non-mission invention

Where the invention has none of the links listed by the statute, it is non-attributable. The employee is its exclusive owner. The employer may neither exploit it nor claim its ownership. The employee remains bound by a disclosure obligation, but the characterisation places the invention out of the company’s reach.

The fair price

In the event of attribution, the employee is entitled to a fair price. This is not the additional remuneration of the mission invention, but the consideration for the assignment or licence imposed by law. The fair price takes into account the initial contributions of each party and the industrial and commercial utility of the invention. Failing agreement, it is set by the National Commission on Employee Inventions or by the judicial court.

The deadlines that decide the dispute

The employee’s disclosure, the proposed classification, the employer’s answer and the exercise of the right of attribution are all subject to deadlines. An employer who lets the attribution period lapse loses the possibility of claiming the invention. An employee who omits the disclosure is exposed to a challenge of the classification. The firm advises on these procedures and litigates employee invention disputes. See our page employee inventions attorney and the Intellectual Property Code on Légifrance.

See also: invention disclosure, additional remuneration, fair price, CNIS and our page employee inventions attorney.