According to the Brazilian Industrial Property Law – BIPL (Law No. 9,279/96), such inventions can be fully owned by the employee, co-owned by the employee and employer; or fully owned by the employer, depending on the role assigned to the employee by the employer and the specific conditions under which the invention was created.

When there is personal contribution from the employee and the use of any resources, data, means, materials, facilities, or equipment provided by the employer, the invention is owned equally by the employee and employer, unless there is a contrary contractual provision. Under the co-ownership regime, the employer is granted the exclusive right to exploit the invention. In return for the employer’s exclusive exploitation rights, the BIPL guarantees the employee a “fair remuneration”. However, the BIPL does not establish criteria to define what would constitute this “fair remuneration”.

According to Philippe Bhering, there is a prevailing trend in the Superior Labor Court to ensure that workers receive 50% of the economic profits derived from the inventions. However, there have been cases where lower (30%) or higher (70%) percentages have been established. As a result, Philippe Bhering advises that companies should take proactive measures to address the gaps in the existing legislation. Philippe Bhering recommends that by specifying the contributions of both the employer and the employee in the employment contract, the court will have a reference to determine the percentage of the economic benefit.

The full article can be read (in Portuguese) here: bit.ly/427Ds4h