Inventor remuneration: digital Employee invention
The amount of remuneration for an employee invention is usually calculated - in addition to numerous other factors - according to the economic exploitability of this invention, i.e. according to licensing, sales price, or the economic advantage from the in-house use. The decisive factor for the technical-economic reference value of the calculation of the remuneration is the influence of the invention's technology on the product, according to the German Employees’ Invention Act (ArbnErfG).
But how is this to calculate for a digital employee invention? Since an employee invention with computer software is often a sub-area of production or automation - what is the relevant reference value for calculating the inventor's compensation for a digital invention?
Digital Employee invention: smallest technical-economic functional unit
If the employee invention only affects a part of an overall device, the smallest technical-economic functional unit must be determined - analogously to the technical-economic reference value. This refers to the functional area of the invention which is essentially characterised by the invention or which is influenced by its function (BGH 2009 - Ref.: X ZR 137/07 - Türinnenverstärkung). In addition to economic considerations, the technical influences and properties of the protected invention and the question as to which parts have received their characterizing features through the protected invention are of primary importance. All circumstances of an individual case must be taken into account.
For a computer-implemented invention, according to the decision practice of the Arbitration Board of the DPMA, the smallest technical-economic functional unit may even be smaller than the controlled "hardware". Ultimately, the pure software module within an employee invention with computer software can therefore be a sufficient reference value for the inventor's remuneration.
The concrete amount of inventor remuneration for a computer-implemented invention is determined using the license analogy, based on the determined reference value.
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.
Digital employee invention: mix of software and hardware
In practice, companies often do not develop - new - software, but rather adapt software. What remuneration obligation results from this for a digital service invention, in particular for a mix of software and hardware or the efficient software adaptation of hardware?
Regarding inventor remuneration and entitlement to inventor remuneration, you have to differ between hardware and software references. Hardware is an open standard and allows the use of heterogeneous hardware architectures. Inventions related to hardware, therefore, do not regularly lead to monopoly-protected hardware products; ergo, hardware-related sales are not included in the calculation of an inventor's remuneration for a digital invention.
Only if the software according to the invention is substantially causal for hardware turnover could hardware turnover be included, but this is rare. In any case, it is not considered 'substantially causal' that software according to the invention uses the properties of the hardware particularly efficiently. In such a complex of software and hardware, only the software-related turnover would be taken into account in the calculation of the inventor's remuneration.
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