No. 4907
Act No. 1, 2012
Government Gazette 23 March 2012
21
INDUSTRIAL PROPERTY ACT, 2012
(3)
When a declaration as contemplated in subsection (1) is lodged, the
Registrar must record the declaration in the register and must retain such declaration for
the duration of the patent.
Invention by employee or person commissioned
21.
(1)
Where an invention is made in the execution of a commission
contract or in the course of an employment contract, the right to the patent for that
invention passes to and belongs, in the absence of written contractual provisions to the
contrary, to the person who commissioned the work or to the employer, as the case may
be.
(2)
Where the right to a patent has passed to another as contemplated in
subsection (1) and it later transpires that the invention has an economic value much
greater than what the parties could have reasonably foreseen at the time of concluding the
commission or employment contract, the inventor has a right to equitable remuneration,
which must be determined by the Tribunal in the absence of agreement between the
parties.
(3)
Despite subsections (1) and (2), when an employee, whose employment
contract does not require him or her to engage in inventive activity, makes an invention
in the field of activities of his or her employer by using data or means available to him
or her through his or her employment, the right to the patent for that invention belongs,
in the absence of written contractual provisions to the contrary, to the employer.
(4)
Where the right to a patent passes to employer in terms of subsection
(3), the employee has a right to equitable remuneration as may in writing be agreed
upon by him or her and the employer, taking into account his or her salary, the economic
value of the invention and any benefit derived from the invention by the employer.
(5)
In the absence of a written agreement between the parties, the
remuneration as contemplated in subsection (4) must be determined by the Tribunal.
(6)
Any written contractual provision which is less favourable to the
inventor than the provisions of this section, or which purports to exclude the application
of this section, is void.
(7)
The provisions of section 20 regarding the naming of the inventor
apply to a person entitled to a patent under this section.
Judicial assignment of right to a patent application or patent
22.
(1)
Where a dispute arises between persons as to their rights to
obtain a patent for or to make, use, exercise or dispose of an invention, or as to the right
to or title in a patent, any party to the dispute may apply to the Tribunal to decide the
matter in dispute.
(2)
If the Tribunal is satisfied that a person is unable or unwilling to exercise
his or her right to file or to participate in an application for a patent, the Tribunal may
order that person to execute an assignment, in order that the application may be made