Entitlement to inventor remuneration

entitlement to inventor remuneration
Inventions in companies and universities are in many cases so-called employee inventions in Germany and are subject to the German Employees’ Invention Act (ArbnErfG) - a complex topic.

An important aspect is always the inventor's remuneration and here the first question arises: How does a claim to inventor's compensation arise?

Entitlement to inventor remuneration

If an employer makes unrestricted use of an employee invention, the employee is entitled to remuneration according to § 9 (1) ArbnErfG. This is not a lawyerly term, but a detail with far-reaching effects. This is because the claim to remuneration exists only "in principle" and thus not in terms of the amount. In short, there is a basic claim to remuneration, but the amount of this remuneration is basically zero for the time being. This is because an invention that cannot be commercially exploited by the company in any way is to be remunerated in the amount of zero, i.e. not at all.

It is important to know that the German Employee Inventions Act (ArbnErfG) is intended to balance the interests of inventors and employers. Pursuant to § 9 (2) ArbnErfG, the assessment of the remuneration is based on the economic exploitability of the employee invention and the tasks and position of the employee in the company, as well as the company's share in the creation of the employee invention.

Accordingly, many parameters go into the calculation of the inventor, for example, the inventor's know-how is taken into account as well as his position and experience in the company, but also the economic potential of an invention or the economic advantage resulting from the invention. This in turn does not always have to be a countable turnover or profit, but can also be a competitive advantage, for example through monopolization. Finally, the extent to which the company's trading strength contributes to the economic success of an invention, and even the company's industry also play a role.

Therefore, the calculation of inventor remuneration is complex. As a service of our law firm, we offer a calculation of inventor remuneration, precisely calculated and legally secure, and for companies with a fixed price guarantee: a fixed amount per patent, inventor and year. More information you’ll find HERE.

Entitlement to inventor remuneration: triggered by…?

The Employees’ Invention Act and the obligation of an employer to remunerate employee inventions in accordance with the rules do not apply only upon a granted patent or upon a proven patentability, but already upon the claim by the employer. And for this there is an important regulation: after a period of 4 months after the invention disclosure, this invention is considered to be tacitly claimed by the employer, the so-called "fiction of claim".

This is important, a lack of reaction by the employer does not mean that the invention becomes free after a certain time and the inventor can dispose of it. Instead, the fiction of the claim occurs as a tacit claim pursuant to § 6 (2) ArbnErfG without any active action on the part of the employer. And triggers a claim to inventor remuneration.

Thus, in any case, it is necessary for an employer to respond to an invention disclosure, even if, for example, the employer does not believe that it is a patentable invention.

Do you have questions about inventor remuneration or other aspects of the German employee invention law?

We are an experienced patent law firm for patent law and for employee invention law.

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