Who has the rights to an invention? Employee Or Employer

One of my employees has made an invention for which we want to apply for a patent. Who has the rights to the copyright, the employee or the employer?There are no legal provisions that govern who is the holder of the invention in an employment relationship. It is advisable to agree with such a scheme in a contract. If there is no contract, you can go back to case law and legal theory, which distinguishes between three types of inventions.

1. The invention of the service is a direct consequence of the performance of the duties with which his employer charged the employee. For example, an employee who makes an invention while conducting the research for which he was recruited. Legal theory and case law assume that this invention belongs to the employer and not to the employee. The employer also does not owe any extra compensation to the employee.
2. The free design is the opposite of the service invention. The free invention is made by the employee on his initiative and with his resources. The employee is entitled to the rights to such an invention.

3. Although the dependent invention relates to the activities carried out by the employee, it is not a direct consequence of the tasks assigned to him. This type of creativity is midway between the service invention and free invention. There is also a clear contribution from the employer, for example of a financial or material nature. These inventions are located in a grey zone: it is assessed on a case-by-case basis to whom the rights belong.

In a contractual arrangement, you can also agree with a co-ownership whereby both the employee and the employer become the holder of the rights. In the case of patents, it is also the case that the person applying for the license acquires the rights as a holder. The person who is mentioned as an inventor on the patent can be a person other than the holder of the patent rights. In that case, only the patent holder has the rights. However, if the patent holder fails to appreciate the rights of the inventor in his patent application, the inventor can file a claim to (get back) his patent rights. That is another reason to ensure an excellent contractual arrangement.
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