Legislator wants to protect worker’s effort and incentivize them to make innovation. In this respect, Turkish Industrial Property Code Law No: 6769 (“IPC”) not only secures the employee when an invention created but also protects employer’s contribution.
IPC categorizes the employees’ inventions in to two groups:
- Service Inventions
- Independent Inventions
According to the description given by the IPC; a service invention is the invention that is created by an employee
i.) while fulfilling his/her duties that is obliged under an employment relation with either a public or private enterprise or,
ii.) based mostly on the experiences or the works of public or private enterprise.
All the other inventions that does not answer the above given descriptions are categorized as independent inventions as per the IPC.
Obligation of Notification
IPC stated that employee is obliged to notify the employer if a service invention is created.
The notification must cover certain information about the invention. According to IPC, the employer must request a new notification from the employer if the notification does not cover the followings;
- The experiences and studies of the enterprise that is benefitted from,
- The contribution percentage of the other workers,
- The instructions that is given to the employee while the invention has being created,
- The contribution proportion of the inventor employee,
On the other hand, employer have to notify the receiving date of the employee’s notification to the employee without any delay to avoid any dispute regarding the date of the notification.
The employer is obliged to request a new notification from the employee if the notification does not contain the above-mentioned data. Otherwise, the notification will be deemed as valid.
The damages must be compensated by the employee if the notification cannot meet the required information. If the employee applies to the patent office to secure the invention without following the obligations, the employer can request takeover of the patent before the general courts.
Claims of the Employer Regarding to the Invention
The employer can claim right from the invention. IPC stated that there are two different types of rights that the employer can claim: Partial right and Full right.
Employer must claim his/her rights within the 4 months following the notification that is made by the employee.
If the employer claims partial right or does not claim any rights, the invention becomes an independent invention as per to the IPC.
If employer claims partial right from the invention, the employer can use this invention on the basis of this partial right.
Right to Demand Compensation
IPC stated that, employee has the right to demand a price for the invention if employer request right form it. The price should be calculated on the basis of some certain criteria. In this respect, a secondary regulation regarding the subject clarify the inventions as 3 sub-groups that is determined by the contribution level of the employee and the the employer. The price is calculated mainly as per to the which group does the invention belong.
Dispute Resolution on Employees’ Invention: Mandatory Arbitration
IPC and the Regulation states that the parties must apply to arbitration for the disputes that is risen from the rights that is claimed and the price that is demanded regarding to the invention. An arbitration agreement or an arbitration clause between the parties is not necessary for such process. In this regard, the arbitration procedure shall be governed by Code of Civil Procedure Law No:6100. If the dispute contains foreign contents the International Arbitration Act Law IPC and the Regulation states that the parties must apply to arbitration for the disputes that is risen from the rights that is claimed and the price that is demanded regarding to the invention. An arbitration agreement or an arbitration clause between the parties is not necessary for such process. In this regard, the arbitration procedure shall be governed by Code of Civil Procedure Law No:6100. If the dispute contains foreign contents the International Arbitration Act Law No:4686 become applicable.
If the parties agree upon, the dispute can be resolved by mediation method. In such event, Law on Mediation in Legal Disputes Law No: 6325 become applicable for the mediation process.