Who is entitled to a patent?

When considering applying for a patent to an invention, or dealing in patent rights, it is important to understand who is entitled to the patent and whether there may be third-party claims to rights of ownership. This can be a particularly complex issue in the context of employee inventions and where there is more than one inventor. Members of Taylor Wessing’s European team explain the issues and describe the key rules applying to patent entitlement in Austria, Germany and the UK.

Austrian patent law entitles the inventor to be designated as inventor. This right is neither assignable nor inheritable. Furthermore, only the inventor and his successors are entitled to the grant of a patent. The entitlement to the grant of a patent and the right to be designated as inventor does not depend on any formality. These rights are enforceable against anyone but do not provide any exclusive right to use the invention and the right to the grant of the patent will fall away as soon as the invention is made public.

Inventors are always natural persons, but their right as inventors can be transferred to their employers. An employee’s invention is understood to be an invention of an employee if the invention’s subject matter falls within the activities of the enterprise in which the employee is active and if either: the activity that led to the invention forms part of the employee’s obligations (e.g. the employee is working in the R&D department); the invention was based on the activities as employee; or the invention was facilitated by using the employer’s experience or resources…

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