German Employee Inventor Act:

ArbEG § 8, PatG § 8 S. 3 -Haltesystem für Werbeprints II

In 2013 the Higher Regional Court of  Dussseldorf issued a disicion regarding the problem of claiming of benefit of inventions which have been made by employees. According to former German Employee invention act, before 2009 the employer has the obligfation to formally claim the benefit of the invention made by the employee within four months after the invention notification.

In case the employer missed to claim the benefit of the invention within this period, the right for filing a patent application turn back to the employee. If the employer missed to claim the benefit of the invention and files a patent application,  fraudulent abstraction was the result.

For several years empolyees were entitled to file vindication actions to demand a transfer of Patent rights or for get licence fees from the employer.

In 2009 the German Employee inventor act was changed in that way that the employer has now explicit refuse the benefit of the inventio within four moths after the invention notification. The change was a resukt of the several cases of vinidcation actions issued by employee inventors.

Now the Higher regional court in Dusseldorf stated that in case of a vindication action the time limit of two years after publication of the patent application or patent have to be respected. In case of missing this deadline no vindication action could be filed by the employee.

Due to the circumstance that since 2009 all patents or patent application have been published, no vindication actions could be expected in the future for such cases according to the former German Employee Inventor Act.

However this is the first decision that considers the deadline of two years for such cases leading to an end of this vindication actions. Further to that, all cases with missed claim by the employer are therefore completed.

To be honest, it is still open, if the German Federal Court will held future decisions which are in line with that of Dusseldorf.