[KOREA Invention Promotion Act] Key Summary of the Employee Invention System

(Date of Writing: January 3, 2024)

Overview of the Employee Invention System The Employee Invention System in South Korea is governed by Articles 10 to 19 of the Invention Promotion Act. The main points are as follows:

Employee Invention (Article 2, Clause 2)

• An invention by an employee, executive of a corporation, or a public official related to their duties, falling within the business scope of the employer, corporation, or government/local authority, and the act of inventing is part of the employee’s current or past duties.

Employer’s Right to Ordinary Implementation (Article 10, Clause 1)

• If an employee obtains a patent, utility model, or design registration for an employee invention, or transfers the right to obtain such, the employer has the right to ordinary implementation of these rights.
• However, this does not apply if the employer, being a large corporation, has a contract or work regulations regarding the transfer or exclusive implementation rights for the employee invention (implying the employer acquires the patent or exclusive implementation rights).

Non-Application to Non-Employee Inventions (Article 10, Clause 3)

• Any contract or work regulation clauses that preemptively transfer the right to obtain a patent or other rights for inventions not related to the employee’s duties, or establish exclusive implementation rights for the employer, are invalid.

Duty to Notify Completion of Employee Invention (Article 12)

• Employees must promptly notify the employer in writing (including electronic documents) upon completing an employee invention.
• If the invention is jointly completed by two or more employees, they must jointly notify.

Employer Notification on Rights Succession (Article 13)

• Upon receiving notification under Article 12, the employer must notify the employee in writing within a period prescribed by presidential decree (within four months) about the succession of rights for the invention.
• If the employer expresses the intention to succeed, rights to the invention are considered transferred to the employer, and if not notified within the period, the employer is deemed to have waived the rights and cannot exercise ordinary implementation rights.
• However, if there are no contracts or work regulations preemptively transferring the rights or establishing exclusive implementation rights for the employer, the employer cannot claim succession of rights against the employee's will.

Case of Joint Invention with a Third Party (Article 14)

• If an employee's invention is jointly made with a third party, and the employer succeeds the rights according to the contract or work regulations, the employer then holds the employee's share of rights in the invention (excluding the third party’s rights).

Compensation for Employee Invention (Article 15)

• An employee has the right to fair compensation if they transfer the right to a patent or establish exclusive implementation rights to the employer according to a contract or work regulations.
• The employer must create compensation regulations detailing the form and amount of compensation, criteria for determination, and payment methods, and notify the employees in writing.
• The employer must consult with the employees (as a collective group) when creating or changing compensation regulations. Any changes unfavorable to the employees require consent from a majority of affected employees.
• The employer must notify the eligible employees in writing of the specific details of the compensation determined according to the compensation regulations.
• The employer is deemed to have provided fair compensation once they compensate according to these regulations, unless the compensation amount does not consider the benefits the employer gains from the invention and the degree of contribution by both the employer and employee in completing the invention.

Compensation during Application Reservation (Article 16)

• The employer must provide fair compensation under Article 15 even if they do not apply for, abandon, or withdraw the application for an employee invention (note: this applies to cases where the application is abandoned to maintain confidentiality).
• In such cases, the compensation amount must consider the economic benefits the employee would have received if the invention had been protected as industrial property.

Operation of the Employee Invention Deliberation Committee (Articles 17 and 18)

• The employer may establish and operate an Employee Invention Deliberation Committee to deliberate matters related to employee inventions.
• Employees may request deliberation by the committee in the following cases, within 30 days from the occurrence of each reason:
  1. If there’s a disagreement with the employer about whether it’s an employee invention.
  2. If the employer claims rights succession or exclusive implementation rights for non-employee inventions against the employee’s will.
  3. If the employer claims rights succession or exclusive implementation rights for employee inventions against the employee’s will.
  4. If the employer claims ordinary implementation rights in violation of laws.
  5. If there’s a disagreement with the employer’s proposed compensation regulations.
  6. If there’s a disagreement about consultation or consent procedures with the employer.
  7. If there’s a disagreement about the specific details of compensation notified by the employer.
  8. If the employer fails to provide compensation.
  9. Other disagreements between the employer and employee regarding rights and compensation for the employee invention.
• Both employer and employee dissatisfied with the committee’s decision can apply for mediation to the Industrial Property Dispute Mediation Committee.

Duty of Confidentiality (Article 19)

• The employee must maintain the confidentiality of the invention until the employer files for it.
• However, this does not apply if it is confirmed that the employer will not succeed the rights.

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Reference Sites Most authoritative information on the Employee Invention System in South Korea can be found on the "Employee Invention System" operated by the Korean Intellectual Property Office (KIPO). The official site of the Employee Invention System, including a standard model for employee invention compensation regulations, can be accessed via the link provided. However, the following website only supports Korean.

 

한국발명진흥회

The official website of the Employee Invention System, including a standard model for compensation regulations for employee inventions, can be accessed through the link provided.