Invenţiile de serviciu şi regimul lor juridic (conexiuni, disensiuni, lipsuri în reglementare şi sugestii de îndreptare a legilor)
Employee inventions and their legal regime (connections, disagreements, regulatory gaps and suggestion for the correction of laws)

Summary/Abstract: Employee inventions are the technical intellectual creations developed by employed inventers while under an individual employment agreement or subsequent to the termination thereof, but within no more than two years as of the termination of the same, either as part of the explicit contractual obligations (mission inventions), or following the development of the invention with the material or immaterial support of the employer (non mission inventions). In order for an invention to qualify (“classify”) as an employee invention, the precondition is the existence of an individual employment agreement, which may be an inventive mission agreement, in which case such mission is the employee’s professional obligation, or an employment agreement without an inventive mission, in which case the invention may fall under the category of employee inventions if developed with the contribution of the employer, which can take on various forms (training support, the provision of material and/or technical means). The development of an invention outside the scope of the mission places the invention thus obtained under the scope of non mission inventions, but the same may, however, be regarded as employee inventions if the employer (also) contributed to their development. The development of inventions by an employee outside the obligations stipulated in the employment agreement and without any contribution on behalf of the employer bestows upon the inventor the capacity of “independent inventor”, the invention thus developed being a “free invention”. The rights over the mission inventions belong, ex lege, to the employers (with one exception that admits, for reasons impossible to identify, the granting of the rights to the inventor). The inclusion of non mission inventions under the category of employee inventions rests with the employers (whose decisions may be challenged in court). The employers are also entitled to “claim” them within four months as of the date on which they were informed on the “development” of the same. In case the informed employer “does not claim the invention”, the rights over the same fully rest with the inventor. For mission inventions, in case the rights over the same belong to the employers, the employees’ (patrimonial) rights are as stipulated in the individual employment agreement. For non mission inventions claimed by the employers, the inventors are entitled to a remuneration in an amount established based on the rules set out in the employer’s own regulations or, in the absence thereof, according to the criteria stipulated under the law. Even though the law stipulates that “the right over the invention belongs to the employer”, we believe that the law takes into account all the rights, i.e.: the right to obtain the protection title, the right to the issue of the registration certificate, the rights deriving from the registration. The law governing employee inventions also applies to utility models, which, according to the legal definition, are also inventions. Nonetheless, we believe that the regulation under a single law of the inventions is the proper solution and that a future law on inventions will reunite the provisions currently spread in three laws.

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