Philippe Bhering provides comments to Valor Econômico on the ownership of inventions created in employer-employee relationships

Partner Philippe Bhering contributed comments to Valor Econômico newspaper on the ownership of inventions created in the context of employment relationships.

According to the Industrial Property Law – LPI (Law No. 9.279/96), such inventions may either be fully owned by the employee, jointly owned by the employee and employer, or fully owned by the employer, depending on the employee’s assigned role 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 equally owned by both the employee and employer, unless otherwise specified in the contract. In the case of co-ownership, the employer is granted the exclusive right to exploit the invention. In exchange for the employer’s exclusive exploitation rights, the LPI guarantees the employee “fair remuneration.” However, the LPI does not establish criteria for what constitutes “fair remuneration.”

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