Co-inventors in companies - mention of the inventor

In many companies, several employees are involved in an invention, often employees from different departments or even from different divisions of the international company. So who is considered a co-inventor and who must be mentioned as a co-inventor?

Mention of the inventor - obligatory within the patent application

In German patent law as well as in European patent law, the mention of the inventor is obligatory in the patent application; Art. 62 and 81 EPC apply to European patent applications. In German patent law, there is a right to the naming of the inventor under § 37 Patent Act and § 63 Patent Act.
This is particularly relevant for employee inventions in Germany, as these are subject to the Employee Inventions Act (ArbnErfG). In practice, disagreements about the mention of inventors may arise in this context. This is because in many companies several employees are involved in an invention, often employees from different departments or even from different divisions of the international company.

This leads to many questions, like:

Who of the employees should be mentioned as co-inventor?

How can an employer ensure that only the employees who are involved are mentioned?

As the employee who reports the invention to the employer, how should I value a small or probable contribution to the invention?

What if I only know in which department the invention was made, but not by whom?

Are those who were present at the brainstorming meeting to be mentioned as co-inventors?

As you can see, these are sensitive questions that are not at all easy to answer, despite the relevant case law.

BGH case law: co-inventor mention in inventor's notification

In 2019, the German Federal Supreme Court (BGH) ruled in ' Fesoterodine hydrogen fumarate ' on a case involving an invention for pharmaceutical compositions. As is usual in such a sector, several employees and also departments of the company were involved.

The employee who reported the invention to the head of the patent department stated that the "formulation" and "analytics" working groups were involved in the development. For the "Formulation" group, to which he belonged, the plaintiff proposed a percentage of inventors. The disputed question before the BGH was whether this invention disclosure should have been submitted via a form of the company or whether a simple written disclosure had also sufficed.

In general, the employer must be able to understand from the invention disclosure that co-inventors were involved and how he can determine them and their shares. However, the degree of detail required depends in particular on what knowledge the employee has or can easily obtain, the BGH explained as a leading decision. As a rule, the employee is required to name the co-inventors from his area of responsibility. With regard to the participation of employees from other areas of the company, on the other hand, it is generally sufficient to mention the relevant organizational unit. And this was what happened in this case (BGH, X ZR 148/17 - Fesoterodine hydrogen fumarate).

Outsourcing mentioning of inventors und remuneration

Despite this case law, uncertainties remain, especially regarding the question of whether the naming of employees for the mention of the inventor(s) is true or complete. We offer our expertise and a technically and competent view. This benefits you as a company and employer as well as you as an employee inventor. More information you’ll find HERE.
Outsource your duty about employee inventions and receive correct mention of the inventors and the calculation of the individual remuneration claims: independently, professionally, and in compliance with German and European law.

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